INTRODUCTION

Some stakeholders who oppose the SA Copyright Amendment Bill and are particularly averse to the Fair Use provisions in Section 12A, use the word ‘Free Use’ and ‘Fair Use’ interchangeably, giving the impression they are one and the same thing. They have circulated much disinformation and myths about Fair Use in the media, which have confused creators and users of copyright works. 

Since the Bill was first published for public comment in July 2015, fair use has been a highly contentious issue and has been debated, rejected or promoted by various opponents and proponents of the Bill, through interviews on radio, television, and articles in journals, newspapers, blogs and social media.  There have been public hearings,  written submissions, media reports, and demonstrations and marches to promote or object to fair use.  Yet, more than a dozen countries around the world, mostly developed,  have adopted fair use in their copyright laws and have enjoyed and benefitted from fair use for decades.  Using their fair use laws, they can use and re-use South African publications  and other copyright works whenever they want to, yet people in South Africa may not use and re-use many South African and foreign publications because fair dealing in Section 12 of the current Copyright Act is too restrictive, and the benefits of Section 12A in the Bill are not yet in place.  Fair use is needed by everyone, whether a custodian, collector, innovator, creator, producer or user of information.

WHAT IS FAIR USE?

“Fair use” is a legal exception in the copyright law of the U.S. and another 12 or so countries around the world and is in Section 12A of the SA Copyright Amendment Bill.  Fair use allows limited use of copyright material without permission for specific purposes, such as criticism, news reporting, or scholarly research, or other purposes. The wording in fair use clauses generally include “such as”, or “including” to enumerate various permissible acts that may be done without permission or payment to a rightsholder, subject to 4 conditional factors. 

Fair use is open and flexible enough to accommodate other types of uses as technologies change, in other words, future-proofing the law so it does not have to be amended each time new technologies make their appearance.   These acts are not guaranteed to be deemed fair use in every case, as each case depends on its merits and is evaluated on a case-by-case  basis.  However, unlike Fair dealing with no criteria in the current Act, the 4 factors or criteria of Fair use will assist creators and users, as well as the courts, in determining whether a certain activity is Fair use.  These 4 criteria must be applied to determine whether a work may or may not be reproduced.   While one factor may carry more weight in a fair use analysis, all factors must be considered, and no single factor can solely determine if the use qualifies for the fair use exception. However, the first and fourth factors tend to be the most influential in most cases.[1]

FAIR USE IN THE SA COPYRIGHT AMENDMENT BILL

The  SA Copyright Amendment Bill outlines the 4 factors as follows: –

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:

  • 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;
  • criticism or review of that work or of another work;
  • reporting current events;
  • scholarship, teaching and education;
  • comment, illustration, parody, satire, caricature, cartoon, tribute, homage or pastiche;
  • preservation of and access to the collections of libraries, archives and museums; and
  • ensuring proper performance of public administration.
  • 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 —
  • the nature of the work in question;
  • the amount and  substantiality of the part of the work affected by the act in relation to the whole of the work;
  • 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, as well as the name of the author shall be mentioned, if it appears on the work.

If the 4 factors do not apply, it is not Fair Use and permission or licensing is required,  e.g. a whole book may not be copied without permission or payment of copyright fees, except in the following specific circumstances: –

Section 12D(4) states that – The right to make copies contemplated in subsection (1) extends to the reproduction of a whole textbook—

(a) where the textbook is out of print;

(b) where the owner of the right cannot be found; or

(c) where authorized copies of the same edition of the textbook are not for sale in the Republic or cannot be obtained at a price reasonably related to that normally charged in the Republic for comparable works.

Section 12D( 5) states:  The right to make copies shall not extend to reproductions for commercial purposes.

Fair use is free to the user, only if all 4 factors apply, otherwise permission or a licence is necessary.

WHAT IS FREE USE?

When the copyright term of protection has legally expired in national copyright law, the works go into the public domain and are free to be used, re-used, shared, translated, and adapted or remixed to create new works.  This is Free Use, and it can also occur when a work is not eligible for copyright protection (e.g. titles, themes, facts, ideas, concepts, slogans, etc.), or when the creator intentionally waives their copyright and dedicates the work to the public domain, such as a CC0 licence (discussed below).  Permission from rightsholders, licensing or payment of copyright fees are not applicable to works in the public domain.   Proper acknowledgement or attribution of the original source, however, still applies.  There is no charge to anyone for the use or re-use of such works, thus making it free use.

Free use also refers to materials made freely available under Copyleft licences, such as the GNU Public Licence, the Mozilla Public Licence and others.   The purpose of free and open copyleft licences is to protect everyone’s right to freely use the work, while preventing ownership, copyright registration, and the collection of royalties from the copyright.  Free use is perpetuated through Copyleft licences, ensuring that the work always remains free and open for use by anyone now and in the future.

Open-source licences such as Creative Commons (CC) licences are framed within a country’s national copyright law and enable free use of works under certain conditions.  There is a choice of six different licences that allow everyone from individual creators to large institutions, corporations and websites a standardised way to grant the public permission to use their creative work under copyright law free and for various purposes.

There is also the CC0 public domain licence that allows creators to give up their rights to a work, effectively opting out of copyright and database protection, and providing free use with “no rights reserved“, meaning that the creator waives any exclusive rights, enabling others to freely use, modify, and distribute the work without restrictions, permissions or payment of copyright fees .

There are some considerations when applying a CC licences, for example: –

  • All of the CC licences and CC0 are irrevocable, meaning once one is applied to a work, anyone who receives it may rely on that licence for as long as the material is protected by copyright, even if they later stop distributing it.
  • To apply a CC licence or CC0 to a work, one must either own the copyright or have explicit permission from the copyright holder. If the work is created in the course and scope of one’s employment, such a licence cannot be applied without the permission of the employer (rightsowner).[2] 

These licences are used around the world, providing free use to millions of books, journals, newspapers, research and educational resources, web content and websites, research archives, databases and various other media.

WHAT IS PERSONAL OR PRIVATE USE?

Section 12.(1)(a) of the current Copyright Act No. 98 of 1978, states that:

Copyright shall not be infringed if a literary or musical work is used solely, and then only to the extent reasonably necessary:-

  • for the purposes of research or private study by,or the personal or private use of, the person using the work;

Section 12 A(a) in the Current Copyright Amendment Bill states that: –

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:

  • Research, private study or personal or private use, including the use of a lawful copy of the work at a different time or with a different device;

Section 12A(a) broadens personal or private use to include the transfer from one device to another, e.g.  taping or downloading the work to listen to or watch later on.   This use is free for individual use only and must be used by one person exclusively. If that person shares a print copy or downloads works to share with others, this would be copyright infringement, unless prior permission had been obtained from the rightsholder.

In essence, personal users are permitted to make a single copy of copyright works for their own private use, but this copy cannot act as a replacement for purchasing the work, especially when it is available for a reasonable price in the market.  Also, should the personal user wish to share the copy with a group of students or lecturers, for instance, they would need to obtain permission from the rightsholders, as this would result in multiple copies which goes beyond the ambit of private or personal use.   

COMMONALITIES

Although Fair use, Free use and Personal or Private use are different in nature and purpose, as indicated above, and should be applied correctly in terms of the South African Copyright Amendment Bill, they do have some things in common, namely: –

  • They are all lawful and accepted terms in copyright law.
  • They allow access and use of copyright works without requiring prior permission from or payment of fees to the rightsholders.
  • They are lawful access tools – not piracy tools or carte blanche for copying anything and everything without permission or compensating the rightsholders. 
  • They enhance and extend access to educational, research and other resources to those who cannot afford to purchase the work or subscribe to knowledge hidden behind paywalls.    

SOME USEFUL RESOURCES ON FAIR USE & RELATED ISSUES

26 May 2025