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South Africa: National Assembly Passes Copyright Amendment Bill, Adopts Expansive Fair Use Exception

(Dec. 21, 2018) On December 5, 2018, South Africa’s National Assembly, one of the houses of the country’s bicameral legislature, passed the Copyright Amendment Bill, 2017, which seeks to amend the 1978 Copyright Act. (Mercedes Besent, Copyright Amendment Bill Passed , SABC NEWS (Dec. 6, 2018); Copyright Act No. 98 of 1978 (hereinafter “the principal Act”), National Library of South Africa website.) Before the Bill can be enacted, as required by the Constitution, it must be passed by the National Council of Provinces, the other house of the country’s Parliament, and signed by the President. ( SOUTH AFRICA CONSTITUTION, 1996 , § 75, South Africa government website.)
One of the key changes proposed in the Bill is the expansion of the general and specific fair use exceptions from copyright protection. The Bill would repeal section 12 of the principal Act, on general exceptions from protection of literary and musical works, and replace it in part with the following language:
   12A. (a) In addition to uses specifically authorized, fair use in respect of a work or the performance of that work, for purposes such as the following, does not infringe copyright in that work:
(i) Research, private study or personal use, including the use of a lawful copy of the work at a different time or with a different device;
(ii) criticism or review of that work or of another work;
(iii)  reporting current events;
(iv)  scholarship, teaching and education;
(v) comment, illustration, parody, satire, caricature, cartoon, tribute, homage or pastiche;
(vi)  preservation of and access to the collections of libraries, archives and museums; and
(vii) ensuring proper performance of public administration. ( Copyright Amendment Bill, B 13B ̶ 2017 , §§ 12 & 13.)
In a recently published article, a number of intellectual property law experts in the United States noted the unique and expansive nature of this provision:
In addition to a set of more open specific exceptions, the South Africa bill contains a well-crafted and unique general exception for “fair use.” The magic of the South African general exception is not in adopting the term “fair use.” The phrases “fair use” and “fair dealing” [language used in the principal Act] mean the same thing. The key change is the addition of “such as” before the list of purposes covered by the right, making the provision applicable to a use … for any purpose, as long as that use is fair to the author. (Sean Flynn et. al., Inside Views:  South Africa’s Proposed Copyright Fair Use Right Should Be a Model for the World , INTELLECTUAL PROPERTY WATCH (July 24, 2018).)
The experts also discussed the Bill’s language dealing with the process of determining whether an act amounts to fair use as “innovative in including helpful clarifications that reflect global trends in interpretation.” (Flynn et. al, supra .) Although it specifically states that they are not exhaustive, the Bill would require the consideration of the following factors to determine whether a particular act done in relation to a work constitutes fair use:
(i) the nature of the work in question;
(ii) the amount and substantiality of the part of the work affected by the act in relation to the whole of the work;
(iii) the purpose and character of the use, including whether—
     (aa) such use serves a purpose different from that of the work affected; and
     (bb) it is of a commercial nature or for non-profit research, library or educational purposes; and
(iv) the substitution effect of the act upon the potential market for the work in question. (Copyright Amendment Bill § 13.)
The Bill’s expansive fair use provisions have generated push back from some groups. For instance, Pen Afrikaans, an organization of writers, issued a statement, among others, expressing opposition to the introduction of the concept of “fair use,” which it claimed is different from “fair dealing [a departure from the view held by the experts noted above], … an established part of South African copyright law.” (Press Release, Pen Africaans,  South African Authors Protest Against Copyright Amendment Bill (Nov. 29, 2018), LitNet website.) It noted that
fair use does not work with a closed list of permitted uses. It is open-ended and requires courts to decide whether a particular use qualifies as “fair”.
There is no need to adopt this doctrine into South African law. It will result in significant legal uncertainty and places the onus on the copyright owner to institute court proceedings to challenge unauthorised use of their work. Authors typically cannot afford to do this, and our courts surely do not need the additional workload.
The existing fair dealing provisions should rather have been expanded as required. (Id.)
Also opposed to the Bill, particularly the fair-use provisions, is the International Authors Forum (IAF). Among its other objections, the IAF expressed concern that not only will the enactment of the Bill endanger the livelihood of authors, but it may also violate South Africa’s obligations under international law. (Press Release, IAF, South Africa’s Copyright Amendment Bill and the Need to Properly Support Authors  (Nov. 9, 2018), IAF website.)

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