Exclusive Rights in News and the Application of Fair Dealing

• Jurisdiction: South Africa
• Author: R M Shay
• Pages: 587-605
• Date: 16 August 2019
• Published date: 16 August 2019

EXCLUSIVE RIGHTS IN NEWS AND THE

APPLICATION OF FAIR DEALING*

RM SHAY**

Lecturer, Department of Mercantile Law, University of South Africa

I INTRODUCTION

The law is under the imperative to catch up to the times. Many landmark

decisions handed down in various jurisdictions over successive decades

try to make the law on the books f‌it the rapidly evolving state of society.

It is beyond the ken of legislation’s abilities to predict how the

development of innovation, culture and custom will modify its course;

as such changes occur with little indication of the directions they might

take. The courts’ expedient task here is to make analogue provisions f‌it

the digital environment — technologically, industrially, and socially.

This is the predicament that South African courts will face in the f‌irst fair

dealing case to be considered here. The Copyright Act has been largely

neglected since its promulgation in relation to new digital media and

practices; the vast majority of its provisions were drafted almost four

decades ago and are thus ill-suited to modern disputes.

This article examines the rules and doctrine of the Copyright Act

relating to the protection (and protectability) of information, specif‌i-

cally factual information relayed by commercial news services. The few

reported South African cases provide an elementary understanding of

the idea/expression dichotomy underlying copyright law. American

courts have decisively extended this principle through the formulation

of the merger doctrine. I argue that this judicial creation is a policy

choice that errs on the side of caution when it potentially protects plain

expression; this choice is similarly open to South African courts. The

defence of fair dealing for the purpose of reporting current events is then

discussed, and the merger doctrine features in the analysis of the factors

* This article is a continuation of research undertaken and submitted for my LLM degree

(Users’ Entitlements Under the Fair Dealing Exceptions to Copyright (unpublished LLM

dissertation, Stellenbosch University, 2012). I gratefully acknowledge the f‌inancial assistance

of the College of Law Research Committee of the University of South Africa, which allowed

me to discuss some of the ideas ref‌lected here with the participants in the f‌ifth meeting of the

Young Property Lawyers Forum at Wadham College, Oxford University, as well as with

Professor Carys Craig of Osgoode Hall Law School, York University, Toronto. Any errors that

remain are, of course, mine.

** LLB LLM (Stell). Lecturer, Department of Mercantile Law, University of South Africa,

Pretoria.

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that are invariably consulted to determine fairness. The article concludes

by issuing several caveats on the application of these factors.

II WHAT CAN BE PROTECTED?

Information cannot be controlled once it is in the public domain, both

practically and legally. Copyright law does not grant rights to informa-

tion; its function is specif‌ically to protect an author’s expression of

factual information and f‌ictional concepts. Although information can

be secured by contract,

1

usually property rights do not extend to the

subject matter of copyright works.

2

There can be no question of

exclusive rights to news events or any other factual occurrence.

3

Copyright protects information in a particular format such as data-

bases,

4

and commonplace elements in an artistic work if the work was

the result of skill and labour,

5

but information contained in ‘merely a

commonplace arrangement of ordinary words’ will not attract protec-

1

Contractual protection includes conf‌identiality agreements, privileged relationships, and

trade secrets.

2

Sometimes the idea underlying a work can be protected against reproduction in a

different form, such as when the plot or story of a f‌ictional work was copied without

reproducing any of the expression. The storylines underpinning certain literary works such as

novels and plays are arguably protected against substantial use as adaptations, but this

protection is aimed at protecting the author’s creative effort from unjust appropriation rather

than granting rights over elements of the plot itself. However, when the underlying ‘idea’ is

purely or primarily factual information, this does not apply: see Sutton Vane v Famous Players

Film Co Ltd [1928–35] MCC 6; Rees v Melville [1911–16] MCC 168 (CA); Corelli v Gray

[1911–16] MCC 107 (CA).

3

Indeed, this is expressly excluded from the ambit of copyright protection by s 12(8) of the

Copyright Act 98 of 1978. It states that, inter alia, ‘news of the day that are [sic] mere items of

press information’ are not eligible for protection. This provision refers to media statements

of an informative nature and not to media reports. However, this principle essentially

reinforces the distinction between information and the expression of information by negating

copyright protection completely rather than by providing for exemption in particular cases.

The United States Supreme Court allowed property-like protection over information by

creating the ‘Hot News’ doctrine, which allowed news publications to prevent competitors

from ‘misappropriating’ information that was costly to acquire around a century ago. The

doctrine effectively created proprietary interests in news information of economic value

through the development of the common law doctrine of misappropriation, although the

protection was only against competing publications and not the public. The duration of these

rights has diminished vastly because of the prolif‌ic development of communication and

publishing technology platforms. The doctrine was f‌irst espoused in International News

Service v Associated Press 248 US 215 (1918).

4

Tables and compilations are included under the def‌inition of ‘literary work’ in s 1 of the

Copyright Act 98 of 1978.

5

Marick Wholesalers (Pty) Ltd v Hallmark Hemdon (Pty) Ltd 1999 BIP 392 (TPV); Accesso

CC v Allforms (Pty) Ltd [1998] 4 All SA 655 (T); Jacana Education (Pty) Ltd v Frandsen

Publishers (1996) JOC 624 (T).

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