An important development in Thursday’s judgment in the copyright case by Moneyweb is that the court laid down factors that should be taken into account in determining “fair dealing” within the Copyright Act‚ a trademark attorney said. The high court in Johannesburg passed judgment in an application by Moneyweb‚ which sought a declaration that the publication by Fin24 of seven articles originally published by Moneyweb in 2013 infringed its copyright.Acting Judge Daniel Berger found that only one article constituted infringement of Moneyweb’s copyright.Section 12(1)(c)(i) of the Copyright Act provides that copyright in literary works shall not be infringed for purpose of reporting current events provided the source shall be mentioned as well as the name of the author.Vicky Stilwell‚ trademark attorney at Kisch IP‚ said the concept of “fair dealing” - which was a defence against infringement in terms of the Copyright Act - was not a new one.“However‚ the South African courts have been reluctant to lay down a formal test regarding the assessment of fairness‚” Stilwell said.She said Berger‚ in his judgment‚ laid down a number of factors that should be considered in determining “fair dealing”.These included:Whether the original work has already been published;The time lapse between the publication of the two works;The amount (quality and quantity) of the original work that has been taken; andThe extent of the acknowledgment given to the original work.Stilwell said the court emphasised this list of factors was not exhaustive and that each would be given a varying amount of weight depending on the circumstances.“In my view‚ these factors will most certainly be used as a basis for assessing the question of fairness going forward.”She said the court also dealt with the issue of determining whether something constituted a reproduction of a “substantial part” of an existing work.The court confirmed that the assessment was a qualitative rather than a quantitative one‚ she said.In his judgment‚ Berger referred to Fin24’s “Aggregation Guidelines”‚ the first of which was “Never use more than 30% of the original source”.“There is a common misconception that if a person uses or reproduces less than a certain percentage of an existing work such use or reproduction does not amount to copyright infringement‚” Stilwell said.She said there was no hard and fast rule in this regard.“It is possible that copying a quantitatively small part of an existing work could constitute infringement if that part is‚ for example‚ the heart of the original work.”She also said the court dealt with section 12(8)(a) of the Copyright Act‚ which states that copyright would not subsist in news of the day that are mere items of press information.“This appears to be the first judgment in South Africa to actually deal with this provision. “She said the court was careful to point out that the principle was not applicable to “all” news of the day‚ but only to mere items of press information. - TMG Digital..