Infringement of Copyright by Reproducing Material Posted on a Website
In a recent copyright infringement case arising out of the unauthorised reproduction of material appearing on a website, an out of court settlement was reached in terms of which the copyist agreed to pay compensation to the website owner, FindanAdvisor. As this was the first publicised case of a successful infringement claim by a website owner against someone who took material from its website, the matter received substantial media coverage.
There can be no doubt that the case attracted attention because it involved copyright infringement via the Internet. The Internet has acquired a mystique that, in the mind of the public, sets it apart from other forms of media. A perception exists that different, more complicated, rules apply to works disseminated over the Internet than to works disseminated as hard copy or in the more traditional forms of media. In fact, under South African copyright law, the Internet is simply one of several vehicles which can, and do, carry copyrighted works. The principles applicable to works carried by more conventional vehicles such as printed material, photographs and the like, also apply to works carried by the Internet.
Written material posted on a website constitutes a literary work or works, and in this respect a website is nothing more than a sophisticated electronic magazine or book. The same principles apply to pictorial material carried on a website, which also constitutes an artistic work or works. In the same way that one infringes the copyright in a magazine article by reproducing a substantial part of it without authority, so does one - in principle - infringe the copyright in written material posted on a website by making an unauthorised reproduction of a substantial part of it. Nothing turns on the manner or the process of the reproduction of the copyrighted work. The law does not distinguish between making a photocopy or rewriting written material published on paper, from downloading the text of material posted on the Internet. Either way, a reproduction is being made of a literary work and no special principles apply simply because reproduction takes place by downloading material via a computer. The South African Copyright Act describes the relevant infringing act as “reproducing the work in any manner or form”.
As is the case where a literary work from a book or magazine is reproduced, written text from a website can be reproduced, subject to certain exemptions from copyright infringement and depending on the circumstances. South African copyright law allows the use of a work in various manners for personal or private use, for criticism, or in a review of other works. It also allows the making of quotations from a work, providing that the material taken is not excessive. In both instances, the use of the reproduced material must have been fair dealing with that material or must be compatible with fair practice. These exemptions could play a role in excusing an unauthorised reproduction taken from a website, in the same way as they would had the material been taken from a book or magazine.
South African copyright law contemplates licences being granted tacitly or by implication from conduct. In the event that a copyright work is reproduced in accordance with the terms of such a licence, no infringement will take place. Depending on the circumstances and the facts, there may be circumstances in which the placing of material on a website by the owner of the copyright therein could constitute a general offer to the public at large to use that material freely. It is more likely that a licence of this nature will be inferred in the case of material placed on a website than would be the case of material included in a book or in a magazine. To this extent one may be able to copy material from websites via the Internet with greater impunity than would be the case with printed matter.
If one analyses the FindanAdvisor settlement and applies the basic rules of copyright law to the facts, one cannot but conclude that the excitement which has been whipped up in the media by the case is in reality “much ado about nothing”. The case is nothing more than a straightforward instance of the infringement of the copyright in a literary work by the making of an unauthorised reproduction of a substantial part thereof.
SPOOR & FISHER