After a seven-year process through Parliament, the South African Copyright Amendment Bill [B13F-2017] was passed by both Houses of Parliament on 29 February 2024.  In mid-October 2024, the President sent the Bill to the Constitutional Court to rule on its constitutionality. 

The Bill has been contentious since it was first published for public comment in July 2015, and introduced to Parliament in 2017.  The fair use provisions in Section 12A of the Bill have been strongly opposed by rightsholders and collecting societies in South Africa and abroad.  On the other hand, the library and archives, research and education sectors, and communities servicing people with disabilities in South Africa and internationally welcome the benefits of fair use and exceptions.

Opponents of the Bill argue that the Bill creates a unique ‘hybrid’ system that combines a flexible fair use provision with specific exceptions, and that this makes it different and far broader than that of the US copyright law, or any other country.    This is not the case.

It is surprising that anyone would challenge or oppose hybridity in the Copyright Amendment Bill, when South Africa’s whole legal system is a mixed legal system. It is a hybrid of Roman Dutch civilian law, English common law, customary law, and religious personal law.  South Africa is a constitutional state, with a supreme Constitution and a Bill of Rights and all laws must be consistent with the Constitution.  The Copyright Amendment Bill is just another example where hybridity has been favourably considered for a South African law. 

Hybridity in copyright law is by no means unique to South Africa.  IP legal expert, Jonathan Band, in his article, Fair Use in South Africa, confirms that:

 “the inclusion of a fair use provisions, as well as other specific limitations and exceptions is general practice in the US and every other country that has adopted fair use in their copyright law.  The US Copyright Act combines fair use with specific exceptions for libraries and archives (section 108); educational institutions, religious organizations, and small restaurants (section 110); users of computer programs (section 117); and authorized entities that provide services for people with print disabilities (sections 121 and 121A).”   

In fact, members of the US entertainment and publishing industries that strongly oppose the Bill routinely rely on the US hybrid system of fair use and specific exceptions in their daily activities, yet object to it being adopted in South Africa.  If the hybrid system in the US works well for them, why deprive South Africans of the same benefits?  Two African countries that have also adopted a hybrid fair use system are Liberia (Copyright Act 1997) and Nigeria (Copyright Act 2023 – although it has kept the term ‘fair dealing’).    

The Department of Trade and Industry (now Department of Trade, Industry and Competition) carefully researched and adopted appropriate limitations and exceptions for South Africans from many countries, including the US, the UK, EU, Israel, Singapore, Germany and others that have progressive copyright laws in the digital environment.   It also studied various approaches taken by Canada and Kenya, which have moved away from restrictive fair dealing to a more flexible fair use system.  Australia and New Zealand also favour a move to fair use, but their efforts to date have been thwarted by strong opposition from multinationals.

The fair use system has never been rejected elsewhere in the world, nor addressed under any WIPO or WTO dispute resolution mechanisms. This system continues to benefit the US and at least 12 other countries.  In addition to confirmation by many IP experts, the Australia Productivity Commission has also confirmed that Fair use complies with the three-step test.    

Contrary to the ongoing disinformation about hybrid fair use spread widely by opponents of the Copyright Amendment Bill, the article  Unpacking the positive sides of fair use for society and creatives at large highlights how fair use (hybrid) has benefitted the populations of a dozen or more countries that have adopted it into their copyright law.  Threats by rightsholders and collecting societies that fair use will cause terrible job losses, loss of royalties, and catastrophic damage to creative industries and economies have been mischievous and misleading.  Many artists and creators who previously supported fair use have been misled by this disinformation.  Many fear repercussions in their careers if they continue to support fair use.  Some have been encouraged to oppose fair use, so that they can join public events or media reports that oppose the Bill.  

The collecting societies that continue to reject the Bill and claim  to represent creators are the same ones that were the subject of investigation in the 2011 Copyright Commission Review Report, because of their failure to be accountable, transparent or pay fair royalties to creators.  They have also recently been the subject of discussion in the media, relating to poor practices and failure to pay royalties, i.e. An Embarrassment of Royalties (Part One): What can break the music industry’s culture of impunity? and An Embarrassment of Royalties (Part 2) — Access to information lawsuit reveals music industry’s underbelly.

The positive benefits of a hybrid fair use system have been proved in many countries.  It would be a pity indeed if South Africans are not able to enjoy similar benefits in the near future.  

The future of the Copyright Amendment Bill is now in the hands of the Constitutional Court, which will address the matter later this month.