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Why ‘fair use’ is so important for South African copyright law

South Africa seeks to amend its outdated copyright legislation. Shutterstock

“Fair use” is a doctrine adopted by some countries that permits the use of copyright material like books, journals, music and art work – without requiring permission from the copyright holder. It provides a balance between the just demands of rights-holders and the need for people to use copyright material for education, research, in libraries and archives.

The reuse of copyright material is done within a framework of four criteria. These determine whether the proposed use is fair or not. If the user complies with these, they may go ahead and use the copyright work without permission from the rights-holder.

In the US, which entrenched the doctrine in its law in 1976, fair use has served citizens well. It has enabled the country’s creative industries to grow exponentially – so much so that the US boasts the largest and most successful filmed entertainment, music, book publishing, and video games in the world.

Despite these gains, “fair use” has its naysayers. Now the debate has come to South Africa, as the country seeks to amend its outdated copyright legislation.

The country’s Copyright Amendment Bill has been redrafted several times since 2015. It has been discussed and debated over the past 15 months by the Parliamentary Portfolio Committee on Trade and Industry. In its latest draft, the Bill outlines several fair use provisions and exceptions for the educational, research and library sectors.

These have been largely welcomed in the higher education space and formally supported by many international and local organisations, institutions, teacher unions, NGOs, various creators, and libraries and archives. That’s because fair use provisions will facilitate better access to information and resource-sharing, along with other benefits like allowing accessible formats for persons with disabilities.

There’s also been fierce opposition to these provisions. Groups that object to the proposed changes would prefer to maintain what’s known as “fair dealing” as the status quo. This is a legal doctrine that allows for an express, finite (closed) list of uses of copyright material without permission from the copyright holder. It’s far more restrictive in application than “fair use”.

The problem is that the status quo is outdated. Entrenching fair use in South African copyright law is a way to ensure the country steps firmly into the present and, ultimately, is able to move into the future. Fair use is “future-proof”. The US, for instance, has not needed to change its fair use provisions since 1976. That’s because the provisions already cater for new technologies, artificial intelligence and new developments that arise out of the fast-advancing fourth industrial revolution.

South Africa’s copyright law must not continue to ignore fair use.

Not a piracy tool

Several arguments have been levelled against fair use in South Africa and other parts of the world.

First, it’s been suggested that fair use offers carte blanche for infringing copyright owners’ rights. Some argue that, for instance, a university could buy one copy of a prescribed book and make copies for thousands of students, without compensating the author. But that’s not fair use; that’s copyright infringement, and it’s expressly forbidden according to the framework that governs fair use.

This framework consists of four criteria, which explore the following issues:

  • the purpose and character of use

  • the nature of the copyrighted work

  • the amount and sustainability of the portion used; and,

  • the effect upon the rights-holder’s potential market.

This framework allows copyright users to assess whether their reproduction, reuse or remixing of copyright works is lawful or not.

Some have also argued that fair use is in conflict with the Berne Convention, an international agreement governing copyright that’s been in use for more than a century. That’s not the case. If it was, the US and other countries that have fair use in their copyright laws would have faced challenges by now under the Dispute Settlement Mechanism at the World Intellectual Property Organisation or other international forums that deal with copyright matters.

Fair use is a positive tool for users and producers of information, as it facilitates access and reuse of copyright works for various purposes, including creativity and innovation, without infringing copyright law.

As US Judge Pierre N. Leval puts it:

Fair use is not a grudgingly tolerated exception to the copyright owner’s rights of private property, but a fundamental policy of the copyright law. The stimulation of creative thought and authorship for the benefit of society depends assuredly on the protection of the author’s monopoly. But it depends equally on the recognition that the monopoly must have limits.

A “foreign” idea?

Another argument that’s been levelled against fair use specifically in South Africa is that the country will be importing a “foreign” copyright regime into its national legislation.

South African laws have been based on or influenced by foreign legislation for centuries. Why would adopting this piece of law – which works in the US and a number of other countries – be any different? In fact, the current “fair dealing” provisions are inherited from British colonial legislation, which makes them equally “foreign”.

South Africa is part of the global community. It cannot ignore legislative developments in other countries, particularly those that will bring them in line with global best practice.

What is the next step?

The latest draft of the Bill was approved by the parliamentary committee in November 2018. Next, it is due to go before the National Assembly, and possibly the National Council for Provinces, for further debate.

Hopefully this ongoing debate will encourage better, stronger fair use conditions rather than leaving South Africa far behind, and will ensure that the country has a fair and progressive Copyright Amendment Act in the near future.

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