n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Exclusive rights in news and the application of fair dealing

Volume 26, Issue 3
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



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, specifically 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 that are invariably consulted to determine fairness. The article concludes by issuing several caveats on the application of these factors.

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