Publishers’ association of south africa

Electronic and paper based newsclipping

Newsclipping refers to a practice where businesses cut certain articles from newspapers and magazines and distributes it to employees or clients. As with linking and caching, this practice takes place internationally, but that fact that “everybody seems to be doing it” does not answer the questions whether it is legal or not.

For purposes of this part of the opinion, we will focus on offline newsclipping, as online newsclipping is based on linking and our opinion as detailed above applies thereto. No local statutes or court cases directly address newsclipping, but it has received attention in a number of foreign statutes:

• 
  Nihon Keizai Shimbun v Comline Business Data (USA) – the defendant collected articles from newspapers and then, after translating and summarising it, sold it to its customers. The court concluded that such a practice amount to copyright infringement and ordered Comline to pay damages of US$220 000 and attorneys fees of US$200 000.
  

• 
  Unreported case (Switserland) – the defendant purchased newspapers and then summarised the articles for its customers. The Swiss court rules that the practice amounted to copyright infringement.
  

• 
  Het Financieele Dagblad en De Telegraaf v Euroclip (Netherlands) – two Dutch newspapers sued a clipping service that distributed copied of newspaper articles to customers. The Dutch court rules that the practice amounted to copyright infringement.
  

• 
  De Gariss v Neville Jefres Pidler (Australia) – The defendant clipped newspaper articles and provided photocopies thereof to its clients. When a newspaper sued the defendant, the defendant claimed that the fair dealing provisions in the Australian copyright act, namely research and study, protected the practice. The court rejected the defence of fair use and held that the practice of news clipping amounted to copyright infringement.
  

• 
  Handelsbatt v Arcus GmbH (Germany) – the court held that a clipping service was infringing a newspapers copyright.
  

In terms of s. 12(7) of the South African Copyright Act:

12. 
    General exceptions from protection of literary and musical works
    

(7)   The copyright in an article published in a newspaper or periodical, or in a broadcast, on any current economic, political or religious topic shall not be infringed by reproducing it in the press or broadcasting it, if such reproduction or broadcast has not been expressly reserved and the source is clearly mentioned.
The above section implies that a newspaper or magazine article may be reproduced if all the following conditions apply:

1. 
   the article must have been published in a newspaper or magazine (or other “periodical”);
   

2. 
   it must be re-produced in the “press” (another newspaper or magazine or online version thereof);
   

3. 
   the content of the article must be political, religious or economic;
   

4. 
   the copyright owner should not have reserved reproduction; and
   

5. 
   the source is mentioned in the reproduction.
   

It is unclear whether paper or electronic articles may be reproduced electronically on web sites (or other electronic media such as cell phone SMS) where the content of such articles are not political, religious or economic. The “press” requirement, detailed above, also needs clarification.

7.