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Unpacking the positive sides of fair use for society and creatives at large

Unpacking the positive sides of fair use for society and creatives at large
The author writes that the adoption of fair use into copyright law has not caused catastrophic damage to the creative industries. (Image: iStock)

Will the fair use clause in the Copyright Amendment Bill have catastrophic repercussions for the creative industry in South Africa? A look at other countries who have adopted fair use, says no.

The current South African Copyright Amendment Bill B13F-2017 is being held up again because of fierce lobbying by rightsholders and collecting societies. Their primary claim is that its fair use clause will destroy the creative industry. A brief survey of countries that have adopted fair use belies any concerns.

What is the purpose of copyright?

“The primary purpose of copyright is to foster the creation and dissemination of works for the benefit of the public. By granting authors the exclusive right to authorize certain uses of their works, copyright provides economic incentives to create new works and to make them available in the marketplace.”   

The US Constitution, Article I section 8, clause 8, states the overarching goal of copyright is to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.

Imagine a world where all copyright works were locked up permanently and access was only possible by getting permission from the rightsholders and paying a fee. Well, there would be very few creations at all and a stagnation of humankind. Without authors and creators having access to knowledge and others’ works, they themselves would not be able to create new works. It is the cycle of knowledge creation — it’s ‘standing on the shoulders of giants that came before’ that makes creation and innovation possible.    

Fortunately, information is becoming more accessible through open content initiatives and programmes, including open-access books, journals and repositories, open educational resources, open science, open research, open knowledge and much more.   

But what about access to copyrighted works?

The Berne Convention and Trips Agreement ensure access to information by providing legal mechanisms called “limitations and exceptions” or “legal flexibilities”. These balancing mechanisms in copyright law enable and enhance access for everyone, for the good of society.  They secure temporary protection of works emanating from creativity, innovation and invention for creators. But also ensure that their outputs result in new, dynamic, diverse or transformative creations, adding to global knowledge, particularly in the digital world.  It is because users of copyright works can access the immense treasury of global knowledge, that they can use, re-use, remix, adapt, translate, and create new transformative works every minute of every day, thus contributing to the ever-changing kaleidoscopic world we live in. 

Read more in Daily Maverick: World Trade Organization urged to scrap ‘limiting’ TRIPS waiver 

The  Copyright Amendment Bill, passed by the National Council of Provinces on 26 September 2023, has adopted helpful provisions for authors and creators, as well as limitations and exceptions for education and academic activities; libraries, archives, museums, and galleries; and for people with disabilities, as well as a catch-all fair use clause 12A (with four determining factors), not only to increase access to knowledge but also to enable creativity, innovation and invention.  

The doctrine of “fair use” originated in common law during the 18th and 19th centuries as a way of preventing copyright law from being too rigidly applied and “stifling the very creativity which [copyright] law is designed to foster”. It was only encoded into the US copyright law in 1976, but because fair use is flexible, progressive and ‘future-proof’, there has not been any reason to amend this law to date. It still applies and embraces new technologies and developments as they materialise in the digital world. 

Unlike the closed list of uses relating to certain works under ‘fair dealing’ copyright systems, the fair use right is a general exception that applies to all different kinds of uses with all types of works. It has four determining factors, which constitute a flexible proportionality test that examines the purpose of the use, the nature of the work, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and the impact on the market of the original work. 

Apart from the US, more than 10 other countries have adopted fair use into their copyright laws as well, the most recent being Nigeria, although they have kept the name as ‘fair dealing’. Earlier this year, I sent a brief survey to the intellectual property (IP) offices or individual IP experts in the majority of those countries, to find out how fair use had impacted their countries, especially the creative industries. Respondents confirmed there was no evidence of catastrophic damage, loss of employment, or withdrawal of investments in the creative industries due to fair use. They gave a positive picture of fair use as an enabler and the balancing tool between the interests of creators and the general public.  Here are some comments that respondents made:

  • Fair use supports a future-ready copyright regime in our country. It is flexible and open-textured, which makes it suitable to be adapted to new or anticipated uses of copyright works. It also allows our courts to make decisions in light of new technologies and business practices, considering the specific facts of each case.
  • We do recommend the adoption of fair use. It is a tool to diffuse knowledge and information but also, the best way to balance the interest of creators and the general public is the statutory adoption of the fair use doctrine.
  • We have not received any formal complaints from industry claiming that the fair use legislation has caused them any damage.
  • There is no evidence to suggest that fair use has led to loss of jobs or income in the creative industries. There may have been some job losses, but far more likely to be linked to Covid/ the economy. In the film and TV sector, there is record employment right now.
  • Arguably, fair use has been useful in our copyright law as a possible ‘catch-all’ exception by providing flexibility for dealing with cases that would be consistent with the Berne ‘three-step test’ but might not necessarily find expression in specified fair dealing permitted uses.
  • Fair use is intended to encourage creativity and allow for transformative works, which can positively influence authors, creators, musicians, photographers, and other artists. Fair use fosters inspiration and innovation.
  • Not aware of more infringement and/or plagiarism in the educational or academic space. If anything, institutions are more sensitive to the copyright issue and have invested in ensuring proper compliance.
  • The authors group claim they have suffered financially because of expanded fair dealing but there is big spending right now for licensing. So, the big question may be “where is that money going?”
  • Fair use has been exceptionally helpful to libraries and archives, and it is certainly recommended for the digital world.

In 2011, the Department of Trade and Industry commissioned a World Intellectual Property Organization (Wipo) Study on “The Economic Contribution of Copyright-Based Industries in South Africa”, wherein fair use is recommended for South Africa. It makes a significant but obvious observation (with reference to the Gowers Review of 2006), that: 

“The existence of a general fair use exception that can adapt to new technical environments may explain why search engines were first developed in the USA, where users were able to rely on flexible copyright exceptions, and not in the UK, where such uses would have been considered infringement.” 

In 2014, the Australian Productivity Commission recommended fair use be adopted, but rights holders lobbied strongly against it. In her 2017 speech to the Australian Digital Alliance Forum, the Deputy Chair debunked many of the myths about fair use. 

In September 2022, in Blind SA vs Minister for Trade, Industry and Competition, the South African Constitutional Court recognised that the current Copyright Act is “unconstitutional, invalid and inconsistent with persons with visual and print disabilities’ rights of equality”. Not only was this a first domestically in post-apartheid South Africa, but also a global first for a court to recognise the lack of an accessible format provision in copyright law as disability discrimination. In doing so, the Court recognises that copyright law, like all other statutes, must be interpreted constitutionally. Arguably, the Copyright Act could be found to be unconstitutional in other areas too.     

Fifteen years in the making, the Copyright Amendment Bill is now before the Portfolio Committee on Trade and Industry for concurrence, before it goes to the National Assembly for approval. This Bill is crucial for South Africans. There is no excuse for any further delays. Parliament is urged to pass this Bill as a matter of urgency. DM

Denise Nicholson is the founder of Scholarly Horizons.


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