Copyright law must be flexible

The South African Copyright Amendment Bill was passed by the National Council of Provinces on 26 September 2023, after a thorough parliamentary review in 2020/2021 and a new legislative passage through the provincial legislatures during 2023. 

The bill was passed by the Portfolio Committee on Trade and Industry on 14 February 2024. It will now go to the National Assembly plenary for voting and thereafter to the president for signature.  

The bill has been contentious since it was first published for public comment in July 2015 and introduced to parliament in 2017. The fair use provisions in section 12A of the bill have been widely criticised in South Africa and abroad. 

Opponents of the bill argue that it creates a “hybrid” system that combines a flexible fair use provision with specific exceptions and that this makes it different from, and far broader than, that of the US copyright law. This is not the case. 

It is surprising that anyone would challenge or oppose hybridity in the Copyright Amendment Bill, when South Africa’s whole legal system is a mixed one. It is a hybrid of Roman Dutch civilian law, English common law, customary law and religious personal law. 

South Africa is a constitutional state, with a supreme Constitution and a bill  of rights and all laws must be consistent with the Constitution. The Copyright Amendment Bill is just another example where hybridity has been favourably used in a South African law. 

Hybridity in copyright law is by no means unique to South Africa. Intellectual property legal expert, Jonathan Band, in his article Fair Use in South Africa, confirms that: “The inclusion of fair use provisions, as well as other specific limitations and exceptions is general practice in the US and every other country that has adopted fair use in their copyright law.

“The US Copyright Act combines fair use with specific exceptions for libraries and archives (section 108); educational institutions, religious organizations, and small restaurants (section 110); users of computer programs (section 117); and authorized entities that provide services for people with print disabilities (sections 121 and 121A).”  

In fact, members of the US entertainment and publishing industries that strongly oppose the bill routinely rely on the US hybrid system of fair use and specific exceptions in their daily activities, yet object to it being adopted in South Africa. 

If the hybrid system in the US works well for them, why deprive South Africans of the same benefits? Two African countries that have adopted a hybrid fair use system are Liberia (Copyright Act 1997) and Nigeria (Copyright Act 2023 — although it has kept the term “fair dealing”).   

The Department of Trade and Industry carefully researched and adopted appropriate limitations and exceptions for South Africans from many countries, including the US, the UK, EU, Israel, Singapore and others that have progressive copyright laws in the digital environment. 

It also studied the various approaches taken by Canada and Kenya, which have moved away from restrictive fair dealing to a more flexible fair use system. Australia and New Zealand also favour a move to fair use but their efforts to date have been thwarted by strong opposition by multinationals. 

After a thorough review in parliament, and comprehensive advice and opinions from the parliamentary legal team, senior advocates in South Africa, and a group of international and local intellectual property experts, the bill was confirmed to be constitutional and compliant with international intellectual property commitments. 

The fair use system has never been rejected elsewhere in the world or addressed under any World Intellectual Property Organisation or World Trade Organisation dispute resolution mechanisms. This system continues to benefit the US and at least 12 other countries. In addition to confirmation by many intellectual property experts, the Australia Productivity Commission has also confirmed that Fair use complies with the three-step test.  

Contrary to the ongoing fearmongering and disinformation about fair use and hybrid fair use, spread widely by opponents of the Copyright Amendment Bill, the article Unpacking the positive sides of fair use for society and creatives at large highlights how fair use (hybrid) has benefitted the populations of a dozen or more countries that have adopted it into their copyright law. 

Threats by rights holders and collecting societies that fair use will cause job losses, loss of royalties and catastrophic damage to creative industries and economies have been mischievous and misleading. 

Many artists and creators who previously supported fair use have been misled by this disinformation. Many fear repercussions in their careers if they continue to support fair use. Some have been encouraged to oppose fair use, so that they can join public events or media reports that oppose the bill. 

The collecting societies that continue to reject the bill and claim to represent creators are the same ones that were the subject of investigation in the 2011 Copyright Commission Review Report, because of their failure to be accountable, transparent or pay fair royalties to creators. 

The positive benefits of a hybrid fair use system have been proven in many countries. They clearly override the myths and disinformation being circulated by those who would prefer to keep the status quo. 

The bill needs to be passed by parliament and signed by the president as a matter of urgency, so that South Africans can start enjoying the benefits that so many countries have enjoyed for a long time. 

Denise R Nicholson is a copyright consultant at Scholarly Horizons.