The proposed fair use exception under South Africa’s Copyright Amendment Bill

In December 2018, South Africa’s National Assembly approved the redrafted version of the Copyright Amendment Bill, opening the way for the Bill to be sent to the National Council of Provinces (NCOP) for concurrence and, subsequently, for Presidential assent. See here for all the versions of the Bill. Since coming up before the NCOP, the bill was considered in February and earlier this month with the Committee of the NCOP resolving to adopt the final report by 20th March. The Bill provides inter alia for accreditation of Collecting Societies; fair use of copyright works; and exceptions for educational and academic activities, libraries, archives, museums and galleries. As with almost every copyright legislative reform, the Bill has attracted both strong support and criticisms. One of the most debated provisions in the Bill is Clause 13 – relating to “fair use”. to Mpuka Radinku, an executive director of Publishers Association of South Africa, “it is unlikely the bill would deliver on its aim of benefiting the creators of materials as a result of its overly extensive copyright exceptions and “fair use” provisions going far beyond the “limited circumstances” described in the bill’s explanatory memorandum for not requiring permission to reproduce or adapt copyright works”. Conversely, Professor Sean Flynn (American University Washington College of Law) and Nontando Tusi (ReCreate policy fellow) argue that the fair use provisions are balanced and will permit uses necessary for further creativity. For them, “all creators are also users” and need fair access to protected works.

The fair use provision
Clause 13 of the Copyright Amendment Bill seeks to insert a Section 12A - General exceptions from copyright protection. It provides that:

Fair...what?

“(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.

(b) In determining whether an act done in relation to a work constitutes fair use, all relevant factors shall be taken into account, including but not limited to—

(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.

(c) For the purposes of paragraphs (a) and (b) the source and the name of the author shall be mentioned.

The proposed fair use provision is similar to the fair use exceptions (fair dealing in Canada) in other jurisdictions such as Canada, US and Israel. However, unlike the US general, case law-generated fair use provision, the proposed South African fair use provision has a closed (but flexible) list of purposes to which it applies.

Obviously, the Bill (including section 12A) is a compromise between many interests and stakeholders and many further voices screaming to be heard. This post is not meant to argue for or against the proposed section 12A. Rather, it is focused on how the provision might apply in practice.

Aims and objectives of the Bill
The Bill has come a long way and inexorably, so has Clause 12A. One of the objectives of the Bill is to protect the interests of rightholders and to promote accessibility to users in a balanced manner. To achieve this, the Bill includes flexibilities that acknowledge global advancements in the digital space.

The Bill also seeks to align South Africa with international treaties (WIPO Copyright Treaty, the Beijing Treaty for Audio Visual Performances and the Marrakesh Treaty).

The main concerns to the fair use provisions are:

(a) That the fair use provisions are too broad and they would override exceptions;

(b) That the provisions would not protect domestic authors and would undermine the copyright market;

(c) That it would lead to substantial loss of income for authors, book publishers and the publishing industry generally, and

(d) That the drafters of the Bill would have failed to take the “three-step test” in drafting the fair use provisions and other copyright exceptions in the Bill.

Republic of South Africa

In response to these concerns, the Department of Trade and Industry has stated that (a) the provision is apt for a ‘developmental state’ such as South Africa; (b) the provision has inbuilt safeguards and tries to balance the interests of rights-holders and that of authors; (c) the provision is informed by examples of other jurisdictions that have had success with similar provision and (e) the provision would encourage innovation to boost job creation. 

How could the fair use exception be applied?

Where an author and/or copyright owner institutes an action for copyright infringement, the defendant in such action might put up a defence and allege that his use of such work amounts to fair use and is therefore, not infringing. It will then be left for the court in such instance to decide whether the defendant’s use of the work is fair, taking into consideration, the circumstances listed in the proposed section 12A.

There are two ways to leverage on the “fair use” exception under the proposed section 12A. First, where the use is for “research”, “private study”, “criticism”, “scholarship, teaching and education” etc. or any of the purposes specifically mentioned in the proposed Section 12A(a), and the factors mentioned in the proposed section 12A(b) are present, it may be presumed that the use is fair. Secondly, any use of a protected work may be considered “fair use” if the factors mentioned in the proposed section 12A(b) are present even if such use is not specifically mentioned in section 12A(a). The next paragraphs deal with each approach.

Purposes mentioned in section 12A(a) + section 12A(b) factors – A defendant may argue that his use of the protected work was for the purpose of “research”, “criticism”, “illustration” or any of the specific purposes stated in section 12A(a). In such circumstances, the court, taking into account the factors stated in section 12A(b) may conclude that such use was “fair”. Much would depend on how the court construes the concepts of “research”, “criticism” and the like. The court may take an expansive or restrictive view.

Some of these concepts - research or private study; criticism or review; reporting current events – are currently recognised within the fair dealing exception provision of the current Copyright Act. See section 12(1). Fair dealing is not defined under the Act. The fair dealing exceptions contemplated by s 12(1) of the Copyright Act have not been subject of judicial interpretation until the case of Moneyweb (Pty) Limited v Media 24 Limited and Another. In that case, the High Court (Gauteng Local Division) stressed that while it may be guided by relevant decisions from other jurisdictions, it must be mindful of the peculiarities of the South African environment and laws particularly its Constitution. See paragraph 103.

On the other hand, Canadian courts have shown that it is possible to stretch the meaning of specific fair dealing exceptions to accommodate the activities undertaken by a defendant. See for example, the case of Society of Composers, Authors and Music Publishers of Canada v Bell Canada 2012 SCC 36, where the plaintiff challenged as infringing, the activities of the defendant in permitting its customers to listen to 30-second preview of songs to enable them make a decision regarding downloading the full song for a fee. The Canadian Supreme Court agreed with the defendant’s argument that 30-second song previews could be treated as consumer research and would therefore qualify as fair dealing.

The point being made from the foregoing is that where the notion of fairness is not defined, the court has a wider discretion to consider everything relevant to the copyright owner’s rights and the public interest, in the specific context of the facts of each case, before reaching a decision as to whether an infringement occurred.

Now, where the court accepts that the use of the work falls within the specified context, will it consider the section 12A(b) factors on its own motion (suo motu)? Who needs to raise the consideration of those factors? Is the burden of proof on the claimant or defendant? Will the exception operate as an affirmative claim or as a defence? This brings me to the second point.

Other uses not mentioned in section 12A(a) + section 12A(b) factors - In considering the claim that any use is fair, the Bill couches these factors in both limiting and broad languages. The factors are listed with “and” suggesting a cumulative interpretation, at least for the factors which are specifically listed.

The factors are also listed using “including but not limited to” indicating that other relevant factors may be considered. What those relevant factors might be is not stated but one may safely presume that a court may more readily admit a use as fair if the use is for the specific purposes listed in section 12A(a) and the factors listed in section 12(A)(b) are found to be present.

Comments
Corollary to the foregoing, nothing is cast in stone (yet) and it will be for the courts to decide whether or not an alleged infringing use is fair. There are arguments that similar provisions and significant reliance on judicial interpretation are what makes jurisdictions like Canada and the US stand out. And that this approach will lead to increased uniformity in access to copyright works. However, while this Africa Correspondent acknowledges that there are benefits to broad copyright exceptions, it is always advisable to provide as much clarity as possible in statutes. The copyright law reform process presents an opportunity to provide that clarity even amidst broad exceptions.

As a judge of the law students association moot court, this Africa Correspondent was told of court’s proceedings which involved learned silk, the late Chief Rotimi Williams. The learned silk had vehemently argued against one position in a matter in which he represented the respondent. In a subsequent matter, the learned silk argued strenuously in favour of that same position on behalf of the appellant who was his client in the matter. When counsel on the other side reminded the court that the learned silk had argued against the same position in a previous matter, the learned silk said, “My lords, we have changed our position”.

In leaving these issues up to the courts, the proposed fair use exception ostensibly leaves matters up to the (changing) arguments of counsel. Positions may consequently keep swinging like a pendulum.