This research report explored which of the two models of exceptions and limitations in copyright- fair dealing and fair use is appropriate for South Africa in the aftermath of the Copyright Amendment Bill (CAB) that is an outcome of the reform of the Copy
This research report explored which of the two models of exceptions and limitations in copyright- fair dealing and fair use is appropriate for South Africa in the aftermath of the Copyright Amendment Bill (CAB) that is an outcome of the reform of the Copyright Act 1978 (CA 1978). Section 12A of the CAB that provides for fair use of copyright works will replace section 12(1) of the CA that provides for a fair dealing of copyright works as an exception and limitation.
The inadequacies of the Copyright Act 1978 in general and the fair dealing provision to provide adequate access to copyright works; promote and protect human rights and effectively respond to the challenges of the digital era led to the introduction of the Copyright Amendment Bill (CAB) and the fair use clause. The inadequacies of the fair dealing provision CA 1978 stem from the fact that the fair dealing provision contains a closed list of exceptions and limitations. Any use for which fair dealing is claimed must fall within these enumerated purposes before the fairness of the use is determined. Any reform of the fair dealing provision that increases the purposes for which fair use is claimed will not remedy a fundamental defect of the limited capacity of fair dealing provisions to ensure that human rights issues are addressed. Countries such as Canada and the United Kingdom have responded to the limited effect of fair dealing by the development of a user’s right and the public interest defence respectively.
The introduction of the fair use clause in the CAB has generated considerable controversy of supporters and opponents. Opponents of the clause raise any legitimate concerns including the fact that the clause will lead to loss of revenue; a shrinking of the value of the copyright industries and constitute arbitrary deprivation in breach of section 25 of the Constitution. Proponents of the fair use clause point to the catalytic effect that the fair use clause will bring to South Africa’s copyright industries enabling all stakeholders to engage in transformative and other uses that will lead to more creative works that will increase the value of the sector and its contribution to the South African economy. Fair use is part of the copyright regimes of the United States, Israel, Taiwan, and the Philippines.
The open-ended nature of the fair use clause and its catalytic feature make the fair use clause ideal for the cultural and creative industries (CCIs) in South Africa. To address many of the legitimate concerns of stakeholders, it is important to elaborate on the jurisdiction practice and procedure of the Copyright Tribunals to deliberate on disputes about fair use in an informal and less expensive manner. To further guide negotiations about fair use, as well as assist the Copyright Tribunal, the Department of Arts and Culture should assist different copyright sectors to engage and produce standards of best practices in fair use.
