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Cape Town - The Copyright Act of 1978 has not kept up with the internet age, counsel for Media24 said in the company's defence in the High Court in Johannesburg after Moneyweb accused it of using its stories.
"The times they are a changing," boomed Cedric Puckrin SC.
"This is a 1978 act. The internet didn't exist."
A good example of this, according to Puckrin, was that computer source codes were protected as literary works before laws were amended.
"Human behaviour and conduct has changed and it must be judged according to the words of the statute," said Puckrin, who submitted that the statutes had been overtaken by time.
Moneyweb launched the court application after it objected to Media24's Fin24 using parts of some of its stories, saying that it had spent effort and money to get the stories, and Fin24 was then just allegedly copying them.
It had complained to Fin24 about this and although Fin24 said it would put a link into the article in question, it also said that it had done nothing wrong.
Moneyweb wants the judge to rule that what Fin24 did was unlawful, that they take down the articles, and the Caxton-owned company wants damages, to be calculated at a later stage.
Puckrin told Acting Judge Daniel Berger that the case was the first of its kind in South Africa and even internationally, other courts are still grappling with the issue.
He asked Berger to accept his submission that originality required that the work should not be copied from something else.
Puckrin contended that copyright is a derivative law, where it was possible to have copyright in an infringing work.
The best example was a translation - where a person could have copyright in the translation, but without permission from the original author, the translation would be an infringement of copyright.
He spent some time providing examples of case law which had tried to understand the concept of originality and provided several examples, such as whether a stenographer or person taking shorthand was producing an original or whether copying poems for an anthology made the anthology original.
He questioned whether Moneyweb had provided enough evidence to show that the articles, which were ''hot news of the day'', were original, or if a transcript was "slavishly" copied.
''If you take the whole you will infringe. The problem arises when you don't take the whole - that is the alleged infringement," said Puckrin.
Continuing his argument, he said: "'Plagiarism', you won't find the word in the Copyright Act. It's just an emotive term, it doesn't take the case further."
He cited a previous Supreme Court of Appeal case which attempted to define original work as that which originates from an author and is not copied from another work. It must also be a product of the author's skill and judgement, and must not be characterised as a purely mechanical exercise.
The term "sweat of the brow" was used to describe a journalist travelling 1 500km to cover a story.
He suggested that "all words are copied" and added, "If you chop up any article into single words, you are left with no copyright."
"Whilst the bar is not high, My Lord, it is more than the sweat of the brow."
Puckrin is expected to continue with the facts of the alleged copying when the case resumes on Friday morning.
