by Roger Hislop (@d0dja) Just before the December 2013 holiday break, Media24 filed answering papers in Moneyweb’s legal action against it, in which Moneyweb alleged “plagiarism on an industrial scale” and anti-competitive behaviour. The reply by Jannie Momberg, editor-in-chief of News24, essentially amounts to a giant “up yours, sonny”.

Roger HislopAs we speak, flocks of lawyers are poring over documents, finessing arguments and printing out gigantic invoices. There has been surprisingly little reaction in the media world to the copyright scuffle and its implications, which begs the question:

In a legal clash that shows all the signs of setting the tone — and the legal precedent — for our entire industry for decades to come, why is everyone sitting back, sucking their teeth thoughtfully, and leaving it up to corporate lawyers and high court judges to define what is, and what is not, allowed to be done in the name of profitable publishing, and what is, or is not, in the interests of journalism, publishing, South African readers and civil society?

The papers filed by Moneyweb, and the reply from Fin24, provide a perfect crash course in the business, ethical and technological issues the publishing industry has to get to grips with — as well as what the impacts may be upon the long-term health of journalism in South Africa.

While there are any number of straw-man arguments and point-dodging in the Fin24 answering affidavit, there are also a few telling points that Fin24 makes that suggest that the merits of each side’s arguments will be incredibly difficult to unpick by a court.

In fact, the only way to draw a clear line through the messy grey of copyright, fair use and what is allowable behaviour will be for members of the SA media industry to get together and actually draw it themselves, before they’re left having to live with rules they had no hand in writing.

Fin24’s reply to Moneyweb — a crash course in online publishing’s underbelly

The gist of News24’s answering affidavit to Moneyweb’s plagiarism and anti-competitive behaviour accusation is “No, we didn’t”, “So what?”, “You actually like it”, “It was barely anything, really” and finally, “Anyway, you do it, too”.

Using words such as “feitlik nonsens” (factual nonsense) and “belaglik” (laughable) in its answering affidavit, News24 has come out swinging.

The nature of modern online news journalism makes it stunningly ease to commit plagiarism in the minutes or hours timeframe that makes light-fingered scooping up of content worthwhile. At the same time, the insatiable hunger for new content is driven by the publish-first-at-all-costs imperative of the click-hungry digital-news market.

So what are the forces arrayed to combat this threat of a copyright free-for-all in South Africa?

Currently nothing but a do-nothing government department (DTI) that is signally failing to address it; a querulous industry and its professional bodies that have done little but wring their hands and tut in private; and a news media industry that itself plays both ends against the middle — it is not going to stick its neck out very far.

Quick recap: the Moneyweb/Fin24 drama that bought this issue to a head

Since a restructure at the beginning of 2013, Media24 has aggressively moved to a new business model where it slashes and burns its newsrooms that create original content, leaving ever fewer resources across more titles.

To make up for the hollowing of its original content capacity, News24 first pushed the lifting of licensed click-bait content from wire services into high gear across its slew of online publications, and then started rewriting content from competitors, effectively presenting it as its own (note the word “effectively” — this is key).

Moneyweb, a direct competitor of Fin24, had enough in September last year, and filed a legal challenge, complaining that Fin24 in particular was not only stealing high-value copyright material as a matter of course, but was also engaging in anticompetitive behaviour. News24 filed answering papers in December, and it’s headed for court mid-2014.

If Moneyweb’s legal challenge fails, and in the absence of any kind of concerted effort by industry organisations to write a code of conduct that is binding on local media, SA media will face a crisis.

An online publisher with light fingers and deep pockets has access to technology and resources that will bury a poorer one. Without being able to differentiate on quality and originality of content, the winner in the short term will be those with faster servers, better software, more investment in user interface and multimedia technologies, more resources to spend on gaming the search engines, more lawyers to tie up challengers…

Like an infestation of mistletoe, the parasitic plant that grows in trees, content parasitism will make the media woodlands look green and lush for a while, before the hosts are drained of their vitality, and both parasite and tree ail and die.

So what are the accusations and ripostes?

Copyright: fair dealing or unfair theft?

Moneyweb’s suit asserts that a number of high-profile stories that Fin24 ran were the entirety (or the vast majority) of its stories, rewritten very slightly, and that Moneyweb was credited with (at best) a glancing reference, easily missed.

Moneyweb claims that this is not just content theft but that it actively damages its ability to compete.

In its answering papers, News24 takes a position as spectacular for its cynical chutzpah as for its non sequitur misdirection.

Gambit 1: there is nothing to copyright

Fin24 starts by claiming that no copyright violation could even have happened, because news is made of “public domain news elements”.

It says: “There is no copyright or exclusivity in news items. No copyright exists on facts, figures, names, places or even quotes in news stories. These elements are not original to the reporter and copyright and exclusivity do not arise when one reports them, even in the first report.”

Essentially, their arguments is: “You use bricks, we use bricks. You went out and found some really good bricks that fit together to build a compelling and original sculpture. We then looked at what you did, used similar bricks assembled in the same way to build an almost identical sculpture. But since we both used bricks, how can you claim you did something special?”

Gambit 2: Even if we nicked your article, it’s “fair use”

News24 then claims that even if the stories it copied were original, under the copyright law, it is allowed “fair use”.

So what is the law?

The Copyright Act, section 23 (2) talks of general exceptions.

(1) Copyright shall not be infringed by any fair dealing with a literary or musical work—

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;
(b) for the purposes of criticism or review of that work or of another work; or
(c) for the purpose of reporting current events—
(i) in a newspaper, magazine or similar periodical; or
(ii) by means of broadcasting or in a cinematograph film:

Provided that, in the case of paragraphs (b) and (c) (i), the source shall be mentioned, as well as the name of the author if it appears on the work.

The nub of the legal matter revolves around “fair dealing”.

The act is a very poor and outdated piece of legislation, the last little tweaking done 15 years ago. In the law currently, “fair dealing” is not explicitly defined. It is, however, commonly used in copyright legislation in Commonwealth countries, where copyright laws explicitly outline the amount of dealing that is “fair”. There is plenty of solid legal work for the court hearing this case to draw from, and for the shamefully out-of-date Department of Trade and Industry to review the legislation.

While the letter of the law is poorly articulated, the intent of section 23, the act is clear. Fair dealing implies fairness. Wholesale lifting of an article by a direct competitor would be difficult to describe as ‘fair’.

Furthermore, the section relevant to news publishers would be part (c). It is perverse to use it as a defence of the wholesale lifting of stories. Fair use in ‘reporting of current events’ is reasonably read to mean that the derived work uses information from some source in order to report on an event that is currently in the public arena — the individual facts about the current event are fair use, not the article that gathers them into a structure and provides an interpretation of the event.

The key here is the matter of degree… using specific lifted facts to create a news story about an event that is current is one thing; using whole sections of almost verbatim content is another.

Gambit 3: Let he who is without lifts, cast the first stone

In any event, Fin24’s affidavit goes on to admit that it lifted material, but that it was attributed and therefore okay.

This is true; Fin24 did attribute — but often in the most crafty way. A typical approach: in the middle of a Fin24 news articles concerned, a source is quoted or a fact is given, followed by a “… according to Moneyweb” rider. Just the word “Moneyweb” is hyperlinked back to the source.

To a casual reader, it would appear as if just that individual quote or comment came from Moneyweb, not the story itself. Further, the hyperlinked word “Moneyweb” looks like the common practice of linking a company name to a reference about it, not like a back link to a source. The referencing of the source material is (by design) hidden in plain sight.

While Fin 24 often obeys what there is of the letter of the law in terms of attribution, it is demonstrably not adhering to the spirit.

Unfortunately, Moneyweb also appears to play fast and loose on attribution in some of its stories, with the Fin24 legal papers detailing a number of examples of pretty sketchy content use by Moneyweb sourced from Financial Times, Guardian and others.

No one looks good here… the magpie culture of online media already runs deep. Few publishers would be lily-white in this regard, which may explain the deafening silence from them.

Gambit 4: Even if we nicked your article, it is good for you

News24 then goes on to say: “Content was clearly attributed and linked providing valuable exposure, transfer of audience and strong benefits for search engine optimisation — a common practice among digital publishing operations.”

On inspection, this “we’re driving traffic to you” claim is meretricious.

For linking to be of any use to the site that the content was taking from, Fin24 readers would need to click through.

Deep in Moneyweb editor Ryk van Niekerk’s affidavit is proof that this is not the case. Readers simply don’t click through from Fin24 to Moneyweb. They got what they wanted already.

Example: Moneyweb’s biggest news scoop — the Defencex scandal — had 20 000 reads. A third of 1% of the page views on came via Fin24’s lift.

Moneyweb affidavit screen shot 2014-02-07 at 15.43.14
Screen shot from Moneyweb affidavit, taken 7 February 2014.

Why would readers of news on Fin24 click through? Since Fin24 has published the entire story, why would readers need more?

Some open-source/digital pundits have castigated Moneyweb (see story comments) for being ‘old skool’ on the whole copyright thing, “You should be more like open source software — you need to change your business model. Look how it is working in software. You’re all just clinging to outdated business dogmas,” they say.

The vapidness of this position is plain — if I copy and use software, it continues to be valuable to both me and to the writer I copied it from. If I copy a news article and someone reads it, then its news value is spent.

Gambit 5: “It was just a tiny little thin one”

And, finally, in a straw-man argument to beat all straw-man arguments, Fin24 says: “In the year the seven articles in question were published, Fin24 published well over 10 000 articles, 11 of which had content sourced from Moneyweb. It is ridiculous to suggest the 11 out of 10 000 is ‘on an industrial scale’.”

“During the relevant period, only 2.05% of Fin24’s articles sourced or ‘aggregated’ content from non-syndicated third parties such as international and local news sites. More than 97% of content was either original, syndicated or user-generated material.”

For Fin24 to count “user-generated material” (generally user comments and unpaid, largely uncurated opinion) and syndicated content into the scope of its content is cheeky beyond measure, the equivalent of, “We copied a couple of your original sculptures to put in our exhibition, but it’s only a tiny fraction of our total offering, if you compare it to the building the display is in, and the parking lot around it, and the free stuff that people leave lying around…”

More to the point — it’s not important how many articles were allegedly lifted; it was that they were some of the biggest news scoops (and hence biggest audience magnets) of their day. It doesn’t matter whether you take a kilo of sand or a ton of sand; it matters how many diamonds were in it.

When is aggregation really aggregation?

A concept that is commonly used, but defined in the way that best suits the user of the term, is ‘aggregation’.

The core of News24’s position is that, in the modern publishing world, it is acting as a news aggregator such as Yahoo! News or Google News.

The big difference is that the “pure” aggregators are looking to draw eyeballs to interesting headlines (and the ads they serve alongside them), and then often the reader needs to click away again to the source to read the rest of the article.

The pure aggregator quotes the headline and a few intro lines, and then provides the source link. To get the news value, the reader must click through. Everyone wins.

If you ‘aggregate’ by taking the whole story so that the reader doesn’t need to click, the source loses. And loses big.

If you look at the definition of news on news sites as including aggregated story elements from various sources into fresh news content, the lines grey, and ethics become deeply subjective.

News24 gives the example of The Huffington Post as vindicators of its “aggregation” practices; yet the HuffPo-style content model has been roundly and stridently criticised in its home market. Only after many years of riding the coattails of other publications’ content has HuffPo started investing in its own newsroom and original reporting, although it is still largely a ‘scrape and drape’ operation.

Compare and contrast Jason Calacanis (of Engadget fame) spanking new news-aggregation service, where curators find stories, write a 300-word précis, and link to the source.

Grow up, Moneyweb, that’s how the modern news industry works

Fin24 says that first prize for a news organisation today is not to be first with the original story with facts reported directly from the source, but to act as an ‘aggregator’, and preferentially pick up material from whomever was at the scene first and run with it as quickly as possible. Instead of multiple journalists from competing publications scrambling for the better story, finding new angles, or uncovering additional information, the modern news publisher should take whatever is available the fastest, and run with it.

Says Momberg: “The method of journalism — of sending out reporters to the scene of each event, trying to conduct interviews and generally trying to obtain all information first-hand — has become largely outdated and antiquated in the 21st century practice of digital media publishing. Practically, media houses rely on the news being disseminated by the first reporter on the scene and then picked up upon and disseminated further by digital publishers, provided the courteous attribution of source is done by means of a hyperlink to it.”

Moneyweb’s Van Niekerk is withering in his scorn: “If the above approach becomes the norm, original journalism will suffer a quick and sudden death. It is very expensive to generate original articles and I don’t agree that mere technological change in news dissemination justifies Fin24’s conduct. I also doubt whether other media institutions, including the several excellent original content publications within Media24, share Mr Momberg’s view.”

The dire consequences of Moneyweb losing in court

The threat to the SA media space of a gargantuan, deep-pocketed media giant being given the legal nod to take content from other players and use it to build its own business is significant. If there is no hard-headed, principled stand by the media industry and, at the same time, Moneyweb loses in court, the dog packs of plagiarism will run free.

The consequences are dire for Moneyweb’s bottom line, but more so for the survival of ‘proper journalism’ as newsrooms get turned into cheap, profitable, rewrite sweatshops. Journalism will become a McJob, not a calling.

An industry based on “news aggregation”, with little investment in original reporting, is death to the aspirations of young writers who would build a career as a true journalist. A true journalist, in the mould of Hunter S Thomson or Bob Woodward or Mandy Wiener or Rob Rose — a journalist who breaks the hard stories, stories that are meticulously researched and fact-checked. Someone who risks all to tell the truth — someone doing what they do from a sense of conviction in their craft, because heaven knows they don’t do it for the money.

Without true journalists, the status and authority of the Fourth Estate as an independent investigative check-and-balance upon the endemic corruption and malfeasance in government and business wither quickly.

What SA’s media organisations can do

Media industry and journalism organisations have to step up, and draw a line in the sand. The Press Council of SA has to wake up from its geriatric slumber and issue a statement of policy. Draw up guidelines. Put something in black and white. The same with the SA National Editors’ Forum (SANEF).

Currently, both organisations are concerned with duties with regard to readers, but not with the ethics of what publishers do to each other. Neither organisation has any active programmes looking at best practices or a code of conduct for news aggregation, or referencing, or hyperlinking.

The Interactive Advertising Bureau (IAB) South Africa, which was the Digital Media & Marketing Association (DMMA) until last week (and the Online Publishers Association [OPA] before that), is primarily concerned with monitoring online publications’ readership as a mechanism of growing advertising, not whether the readership was legitimately built.

The Professional Journalists Association (ProJourn) likewise has no clear policy: “ProJourn hasn’t officially documented guidelines on what is considered fair use, preferring to leave that to the people in the newsrooms responsible for such things — the editors,” says general secretary, Samantha Perry.

Since the law is weak, creating formal, accepted best practices is the next best thing.

Perry wants to see clearer industry rules: “Publishers need to be clear that content that is not originally generated in totality by their own newsrooms needs to be attributed as such, very clearly and explicitly. Possibly we need to go one step further and only allow the re-use of content where permission has been explicitly given and some sort of agreement crafted between the publishers concerned if a news service wants to do more than just refer to an original piece.”

She warms to the theme… then deflates in the face of the challenges: “How practical this would be, on the other hand…”

Without legislative force, getting publishers to even sit in the same room, never mind agree upon binding rules to toe the line she is proposing, would be very difficult. But it would create certainty. It is worth doing.

The internet changes everything 

If plagiarism can become institutionalised in online publishing, those with the deepest pockets, with the most to invest in the online technology platforms and online design and content optimisation will flourish, like mistletoe.

If the media houses don’t agree on a sustainable model for what is, and what is not, acceptable in taking and reusing content, the courts will decide. We can only hope they will decide well because, if plagiarism becomes the norm, for a while our media forests will look green and healthy – until the hosts are sucked on for just too long.

And then our society will no longer have a Fourth Estate with the will and the skills to crack open the Defencex scandal, penetrate the e-toll spin, or hack through the Zuma spy tape evasions. We will just have 5 Mind Blowing Things You Never Knew About Belly Fat.

Roger Hislop (@d0dja) is a writer and analyst on media and technology, with a day job in technology strategy and product innovation in the telecoms space. He has spent most of the last 15 years writing on technology, media and business from both sides of the fence — as a journalist, and as a corporate communications professional. He writes in his personal capacity.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the position of the editors or publisher.

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