The compliance of the fair use clause in the South African copyright amendment bill with the three-step test and the constitution of South Africa

At the outset it is important to note that this article is not about the fair use clause in the US Copyright Act and its associated jurisprudence. American scholars have written extensively about fair use. Some are critical of it for its unpredictable nature while others applaud it and argue that it is less unpredictable than it is normally portrayed. Instead, this article is about the South African fair use clause contained in the Copyright Amendment Bill (the Bill) and assesses whether or not it complies with the required three-step test as articulated in the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS Agreement) to which South Africa is a party, and is valid in terms of the Constitution of the Republic of South Africa, 1966. Therefore, the standard for assessing whether the Bill complies with the three-step test is that embodied in South Africa’s international obligations as interpreted by international tribunals and not the American standard and the associated jurisprudence. Also, this article does not turn a blind eye to the catastrophic consequences where there is no balance between societal interests and the interests of rights owners. Of course, any encroachment on copyright must be done in accordance with the Constitution of the Republic of South Africa and the South African international obligations encapsulated in the three-step test and other human rights instruments such as the 1996 International Covenant on Economic, Social and Cultural Rights, all of which strike a good balance when applied properly.

Notwithstanding the imperative to preserve the monopoly system to innovation, the state parties to the Berne Convention enabled inroads—exceptions and limitations—through Articles 9, 10, 11 and 11bis, for example. However, these exceptions are carefully circumscribed by the three-step test contained in Article 9.2 of the Berne Convention and replicated in Article 13 of the TRIPS Agreement. The Berne Convention provides a template for copyright protection by prescribing minimum standards of protection. Consequently, the copyright legislation of the state parties to the Berne Convention echoes the Convention, albeit with some differences in the implementation of the said minimum standards and the exceptions thereto.

There have largely been three approaches to the unlicensed use of copyrighted works: the US open-ended fair use, which system is followed by a handful of countries such as Singapore, Israel, Liberia, the Philippines and South Korea; the UK’s closed list of what constitutes fair dealing, which has been widely adopted, particularly by members of Commonwealth including but not limited to Australia, the Bahamas, Barbados, Canada, Cyprus, Hong Kong, India, Ireland, New Zealand and South Africa (until now); and a third approach, which embodies specific exceptions and is not discussed in this article. Some of the Commonwealth countries have considered fair use in recent years but decided not to adopt it for fear of harming their creative industries. Australia is a case in point.

As the home of and host to major tech companies, the USA has been a leader in copyright law reform. Accordingly, a number of states have begun to borrow from the USA’ legal framework regarding copyright law. South Africa is among these states, as reflected in the controversial Copyright Amendment Bill, which has been referred back and forth between the President and Parliament. One of the most contested clauses in the Bill is its proposed fair use clause, which is derived from the US Copyright Act. While welcomed by universities, libraries, trade unions and companies whose business model is dependent on the free flow of information such as on Google, this clause has not received favour from entities in the copyright industry because it is viewed as an existential threat to the protected monopoly offered by copyright law. Specifically, the fair use clause is contested by publishers, collecting societies representing performers and producers, and major tech and entertainment companies, such as Multichoice South Africa, Netflix and others. Submissions have also been made to the US Trade Representative to take action against South Africa, and an outcome to these submissions is pending.

With the above background in mind, this contribution seeks to highlight the differences between fair dealing as set out in the Copyright Act and fair use as contemplated in the Bill. The research reveals that the chief differences lies in the fact that, with fair dealing, the list of free uses is exhaustive, while with fair use it is open-ended, thereby giving courts the power to identify new uses. As regards the criteria for determining fairness, this contribution establishes that the different purposes and the substitution effect in the Bill’s fairness assessment constitute the most significant threats to copyright owners.

This contribution builds on the work of Professor Sadulla Karjiker, who wrote about fair dealing and fair use in 2021, cautioning South Africa not to pursue the inclusion of fair use in its copyright laws. Professor Karjiker warned that the consequence would be chaotic despite the enthusiasm of its supporters, who simply aver that fair use is superior to fair dealing. Professor Karjiker compared the two concepts as I am doing in this paper and found that the open-ended fair use clause violates South Africa’s international obligations as it ignores step one of the three-step test under both the Berne Convention and the TRIPS Agreement. My argument, instead, is that even steps two and three are in jeopardy. This article goes beyond that of Professor Karjiker also in that it examines the effect of the fairness assessment on the copyright laws in South Africa and concludes that the fairness assessment is carefully crafted to enable the deprivation of an owner’s copyright, which—I submit—is in contravention of section 25 of the Constitution of the Republic of South Africa.

South Africa is a constitutional democracy premised on the rule of law. Nonetheless, President Cyril Ramaphosa pondered the constitutionality of the Bill beyond the time allotted to him by law to sign the Bill. By all accounts this was because he was not satisfied with the Bill. He therefore referred the Bill back to Parliament as he is obliged to do in terms of section 79(1) of the Constitution. Continuing to have reservations about the Bill even after Parliament’s reconsideration thereof, President Ramaphosa invoked section 79(4)(b) of the Constitution and referred it to the Constitutional Court to rule on its constitutionality. This contribution may therefore be of value to the Constitutional Court in determining the constitutionality of fair use, among other aspects. Should the Bill be found to be unconstitutional, this contribution may assist the legislature in gaining a deeper insight into what constitutes compliance with fair use in the context of South Africa’s international obligations while adhering to the tenets of our own Constitution. AI was among a handful of academics and practitioners who facilitated a workshop for the legislature on general copyright law in preparation for their public hearings on the Bill, we had been cautioned against getting into the subject matter of the Bill, which meant that we could not assist the legislature in understanding the differences between fair dealing and fair use as proposed in the Bill. Should the Bill be enacted after the referral to the Constitutional Court, this paper may be useful to the courts as the new law will surely attract litigation, given the ambiguity that plagues the Bill.

In pursuit of the objective stated earlier, this article textually analyses the current Copyright Act of South Africa, the Copyright Amendment Bill and the WTO case law on the three-step test to assess whether South Africa will be in compliance with its international obligations should the Bill be signed into law with the fair use provision in its current form.

Subsequent to the introduction provided earlier, this contribution has two additional substantive parts. Part 2 is centred on the textual differences between fair dealing and fair use. It highlights the implications of fair use for the rights of copyright owners and underscores the need for compliance with the three-step test. Part 3 delves into the constitutionality of fair use. Part 4 concludes the discussion, highlighting the salient findings.

Source: https://academic.oup.com/jiplp/advance-article/doi/10.1093/jiplp/jpaf031/8128929