For decades, Blind SA has been lobbying against the ‘book famine’ and lack of provisions for blind and visually impaired persons in the current copyright law.  This discrimination has gravely affected their social and economic development, education, work and leisure opportunities and other aspects of their lives, including lack of equal access to reading material that sighted persons have taken for granted.  The law has in fact made copying and reuse of copyright work in accessible formats illegal, without permission from rightsholders, essentially criminalising people for needing to access information. 

Historical Context: 1999 – 2019

As early as 1999, the library and educational sectors raised concerns at a multi-stakeholder workshop convened by the Department of Trade and Industry (DTI) about the discriminatory nature of the current copyright law against people with disabilities.   DTI proposed amendments to the Act in 2000. More restrictive provisions were proposed for education, libraries and archives, and minimal provisions were included for people with visual impairments.  A task team mandated by the South African University Vice-Chancellors’ Association of South Africa (SAUVCA) and the Committee of Technikons (CTP), predecessors of University South Africa (USAf), challenged the proposed amendments to the Act in Parliament.  These proposals were subsequently withdrawn and not included in the Amended Copyright Act of 2002, which then only addressed needle time for musicians.  The task team had already succeeded in stopping more restrictive draft Regulations being passed in 1998.

From 2002 until 2009 there was a legislative impasse with regard to copyright reform. Due to many problems in the music industry, the Department of Trade and Industry decided to commence a process of reform in 2009.  It commissioned various research studies and established a Copyright Review Commission to investigate ongoing problems in the music industry.  The DTI convened workshops for stakeholder groups and input was given on various aspects of the copyright law. To ensure a holistic approach to the 1978 Act, the DTI was provided with important documents and resources relating to education, libraries and other information services, and persons with disabilities, and other relevant issues sourced from WIPO, WTO, UNESCO, Creative Commons, the International Federation of Library Associations and Institutions (IFLA), Electronic Information for Libraries (EIFL)’s Model Copyright Law, and from regional copyright project findings and local organisations. Appropriate clauses and provisions were also submitted to the DTI relating to countries with progressive copyright laws where developed countries were enjoying benefits that South Africa, a developing country, still did not have in its copyright law.

In July 2015 the DTI published a draft Copyright Amendment Bill for public comment and it was also discussed at a multistakeholder workshop convened by the DTI in Gauteng.  After receipt of many submissions and necessary edits and amendments, the Bill was forwarded to Parliament in 2017.   The Bill included Section 19D with appropriate provisions for people with disabilities, including those who are blind, deaf, dyslexic or suffer from other disabilities that prevent them from accessing information.

In 2013, South Africa strongly supported the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The Treaty came into effect in 2016, but South Africa did not ratify it, stating that its national copyright law would need to be amended first to include appropriate provisions for people with disabilities.  Some years later, it confirmed that once the Copyright Amendment Bill has been signed, it will move to ratify the Treaty. 

Parliamentary Approval; Presidential Rejection

The first Parliamentary process took over two years but the Bill was finally passed by both Houses of Parliament  in 2019.  It was then referred to the President for assent, but he did not act on the Bill for a period of 15 months.  The President was being lobbied strongly by rightsholders, collecting societies and multinationals, and was receiving unprecedented pressure from the US Trade Representative’s Office (USTR) and the EU  Commission, to stop the Bill. This led him to decide not to sign the Bill and to refer it  back for Parliamentary review on 16 June 2020.  He requested a review of certain clauses, including fair use, exceptions for education and academic activities, libraries, archives, museum and galleries, and temporary copies, questioning their constitutionality.  Notably, these reservations did not include Section19D.

This also led to the Portfolio Committee on Trade and Industry agreeing to send the Bill for retagging from a Section 75 Bill (National) to a Section 76 Bill (Provincial), which resulted in a drawn-out process through all nine Provincial Legislatures. 

Blind South Africa Litigation

According to previous commentary, “Recognising that the referral would result in an inordinate delay, Blind SA approached the Gauteng High Court in 2021, primarily seeking to have the Copyright Act declared unconstitutional to the extent that it “limits and/or prevents persons with visual and print disabilities accessing works under copyright that persons without such disabilities are able to access”. Blind SA also sought an order reading in the provisions of the amendment bill that sought to give effect to the Marrakesh Treaty”.[1]

On 7 December 2021, the Gauteng High Court ruled that the current Act is unconstitutional as it relates to people with blind and visual impairments . On 21 September 2022, the  Constitutional Court confirmed this ruling and made a landmark decision, marking the first time in its 27-year history that it addressed a copyright law case. The Court recognised that the absence of provisions for accessible formats in copyright law constitutes disability discrimination.  This ruling set a global precedent, affirming that copyright law, like any other law, must be interpreted in a way that aligns with constitutional principles, including the rights of people with disabilities.  As an interim solution, the Court read-in a temporary provision (Section 13A) into the current Act, allowing for the creation of accessible formats without permission, and suspended the declaration of invalidity for 24 months to allow Parliament to amend the Copyright Act.[2]

After a thorough review and passage through the provincial legislatures, the Bill was passed again on 29 February 2024 and sent to the President for a second time for assent.  The approved Bill provides appropriate exceptions for people with disabilities in Section 12D, as well as other relevant exceptions that they (and others) need in their daily lives,  e.g. fair use, education and academic activities, temporary copies, provisions for libraries, archives, museums and galleries who provide services and access to knowledge to these communities. 

The President again did not sign the Bill by 24 September 2024, resulting in the aforementioned temporary provisions of Section 13A, being rendered invalid.  This created a hiatus in the law, making accessible formats for blind and visually impaired people illegal once again, without permission from rightsholders.   

After various communications were sent by Blind SA to the Presidency, without a satisfactory result, Section 27, on behalf of Blind SA,  announced on 10 October 2024, in a  media statement that it “has launched an urgent application in the Constitutional Court against President Cyril Ramaphosa for failing to sign the Copyright Amendment Bill”.[3]   Five days later, the President referred the Copyright Amendment Bill, with its sister Performers’ Protection Bill, to the Constitutional Court for a ruling on its constitutionality. 

ConCourt ruling in May 2025: Opening the door for access to information, accessible formats and ratification of Marrakesh Treaty

As reported in the press, the Constitutional Court’s ruling on 7 May 2025, “builds on a 2022 ruling and is seen as a crucial step in upholding the rights of people with visual impairments.[4]  However, by its inclusion of Section 19D of the Copyright Amendment Bill, it is important to note that the Court’s ruling extends to people with other disabilities, including deafness, dyslexia,  learning and other disabilities who have experienced prohibitions or restrictions on access to information without the use of sub-titles and captioning, more visual content, enlarged print, audio description, braille or other accessible formats.  Section 19D aims to ensure that people with various disabilities can access and use copyright works in accessible formats without requiring prior copyright permission or paying high fees for conversion of materials.  South Africa can now ratify the Marrakesh Treaty, opening the door to cross-border exchange of copyright works in accessible formats.

Christo de Klerk, President of Blind SA,  confirmed the Court’s findings as follows:

• Blind SA’s application for direct access to the Constitutional Court was justified and granted.
• Section 19D of the Copyright Amendment Bill replaces the Court crafted Section 13A which will form the legal  framework for Government to ratify the Marrakesh Treaty and will remain in effect.
• The reason for Blind SA’s application to the Constitutional Court was a direct result of the President’s failure to do anything after the National Assembly had sent the Bill to him for assent, and his poor communication with Blind SA. He is ordered to pay Blind SA’s costs at the rate of two counsel.

Acknowledging the landmark ruling made by the Constitutional Court,  Jace Nair, CEO of Blind SA said “this will allow blind people to have better access to published work so that it can improve our education and access to reading and material and thereby improve our participation in the economy and the country. For the last 20 years we’ve been trying to advocate for the exceptions in legislation.” [5]    

Blind SA looks forward to ratification of the Marrakesh Treaty and positive outcomes for the Copyright Amendment Bill and Performers’ Protection Bill in the President’s referral matter that is scheduled to be heard by the Constitutional Court on 21 and 22 May 2025.

[1] https://www.bridgegroup.co.za/blind-sa-v-minister-of-trade-industry-and-competition-and-others

[2] https://journals.co.za/doi/full/10.2989/CCR.2023.0016

[3] https://www.policywatch.co.za/post/two-weeks-on-and-counting

[4] https://www.citizen.co.za/benoni-city-times/news-headlines/local-news/2025/03/24/constitutional-court-upholds-rights-of-blind-and-visually-impaired-people-to-access-copyrighted-works

[5] https://capetimes.co.za/news/2025-05-08-landmark-concourt-victory-for-the-blind/

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

• A Balanced Interpretation of the “Three-Step Test” In Copyright Law (
• Defending Fair Use In South Africa
• Dispelling Myths About Fair Use.   
• Fair use complies with the three-step test (Australian Law Reform Commission)
• Fair Use for Non-Fiction Authors (Authors Alliance)
• Fair Use in Copyright Law
• Legal Opinion on Copyright Amendment Bill (Prof. T. Hoeren) (2022)
• S. Cowen SC et al.  Opinion on constitutionality of the Bill (2019)
• The Three-Step Test Revisited: How to Use the Test’s Flexibility in National Copyright Law
• Third Joint Academic Opinion on the South African Copyright Amendment Bill [B13D-2017]
• What is Fair? (Australian Productivity Commission)

26 May 2025

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.  

After a seven-year Parliamentary process,  a thorough review following Blind SA’s action against the President in May 2020, and retagging that resulted in a process through the Provincial Legislatures, the Copyright Amendment Bill [B13F-2017] (‘Bill’) was passed by Parliament on 29 February 2024, with majority support from the African National Congress and smaller parties. It was then sent to the President for action under Section 79(4) of the Constitution.  On 10 October 2024, the President elected not to sign the Bill and referred it to the Constitutional Court (‘ConCourt’) to determine if Parliament had adequately addressed his previous concerns in 2020.  

The President’s action is not surprising due to the contentious history of the Bill.  But, it does, however, conflict with his Heritage Day Speech on 26 September 2022, when he said:

“… Struggling artists are taken advantage of and strong-armed into giving up their rights and their royalties.
 
That is why we are redoubling our efforts to preserve our heritage and protect our artists. 
 
Through their songs, dance, paintings, storytelling, sculptures and other form of art, artists carry on their shoulders the heavy responsibility to transmit our heritage from one generation to another. 
 
Artists must therefore be paid their dues.
 
In honour of Solomon Linda and his legacy, let us ensure that our artists do not suffer in their lifetimes and are not condemned to dying in poverty.
 
The new Copyright Amendment Bill passed by the National Assembly at the beginning of this Heritage Month will go a long way in protecting our artists and towards addressing their concerns about the collection and distribution of royalties.
 
We are determined to use the law where necessary to preserve our cultural heritage. 
 
We also need to defend and preserve our indigenous languages.” 
 

His action also conflicts with the South African Government’s decisive rejection of the International Intellectual Property Association (IIPA)’s critique of the Bill in July 2024, when it stated that –

 “South Africa clearly wants to move forward and this direct pushback against the lingering demands of the copyright lobby shows that the time for negotiations and backroom meetings has passed.” And, that “the South African Government doesn’t plan to go back to the drawing board again.”  “Unlike the IIPA, the Government of South Africa believes that its fair use proposal will benefit society as a whole. Better yet, it may even have a positive effect on the economy.”  

Bill’s passage through High Court of SA and ConCourt (2021-2024)

In 2021, facing an ongoing book famine, Blind SA, with assistance from Section 27, took legal action against the President in the High Court of South Africa, Gauteng Division. On 7 December 2021, the Court found the Copyright Act no. 98 of 1978 to discriminate against blind and visually impaired persons.   It ordered a reading-in of section 13 of the Act under the heading “section 13A Exceptions applicable to beneficiary persons” to align it with the Constitution.

On 21 September 2022, the ConCourt handed down judgment confirming the High Court’s order of constitutional invalidity. This reading-in was to endure for 24 months (i.e. to 21 September 2024) to enable Parliament to remedy the defect in the Copyright Act giving rise to its invalidity.  The deadline of 21 September 2024 came and went, but the President did not sign the Bill, effectively rendering the ConCourt’s order and reading-in of Section 13A null and void.  

As a result, on 9 October 2024, Blind SA, supported by SECTION27, brought an urgent case before the ConCourt against President Ramaphosa, the Speaker of the National Assembly, the Chairperson of the National Council for Provinces, the Minister of Trade and Industry and the Minister of International Relations and Cooperation.   This litigation, Blind SA v. President of the Republic of South Africa, was launched to compel the President to sign the Copyright Amendment Bill or to keep the court-crafted exception, Section 13A, in effect until the Bill has been signed.   This case highlights the ongoing struggle for equal rights and improved access for persons with disabilities in South Africa, and the urgent need to obliterate the ‘book famine’ that blind and visually impaired persons have endured for decades.

In response to this matter, on 10 October 2024 the President referred the Bill to the ConCourt in Ex Parte President of the Republic of South Africa, based on concerns he had raised in 2020.   The Presidency stated:

 “President Ramaphosa has indicated to the Constitutional Court his reservations about provisions in the legislation originally drafted and reconsidered by Parliament and has, as a result, requested the apex court for a decision.” 

Consolidated case to be heard on 28 November 2024

The ConCourt must now determine if Parliament has adequately addressed the President’s concerns, focusing only on Sections 6A, 7A, 8A, 12A-D, 19B-C of the Bill. If any are found unconstitutional, the Bill will be sent back to Parliament for corrections.  This means it cannot be signed until the Court rules on its constitutionality and any issues raised are addressed by Parliament. 

In its directions on 22 October 2024, the ConCourt confirmed the cases of Blind SA v President of South Africa and Ex Parte President of South Africa have been consolidated and scheduled for hearing on 28 November 2024.  Consequently, Blind SA has amended its request to seek the continuation of the reading-in of the court-crafted section 13A exception in the current law until the President signs the Copyright Amendment Bill.

The President’s referral to the ConCourt is a crucial and expeditious step in the Bill’s lengthy legislative process.  Stakeholders wait in anticipation for the ConCourt’s decision on the future of the Copyright Amendment Bill.  

One of the most progressive and pro-transformation bills on the President’s desk is the Copyright Amendment Bill. This was passed by both Houses of Assembly on 29 February 2024.  It resolutely speaks to the President’s Address on 18 July 2024, and the GNU Statement of Intent, and urgently awaits his assent. 

Through a lengthy process in Parliament since 2017, and supported by various expert opinions and research, this Bill has been confirmed to be in line with the Bill of Rights and international intellectual property agreements.   The Bill remedies the omissions, discrimination and restrictions in the current copyright law, relating to access to information, education, libraries, archives, museums and galleries, and people with disabilities. It also provides an empowering framework for authors and creators to better control their works and to earn fair royalties from their works.

Most scrutinised copyright bill in the world

As EIFL (Electronic Information for Libraries), in its letter to the President in March 2024, wrote that having gone through such a long legislative process for the past 7 years, the Copyright Amendment Bill is “one of the most scrutinized copyright bills in the world.”

President must comply with Section 79 of the Constitution

The President is obligated to act on the Bill in terms of Section 79 of the Constitution, within a reasonable period, as follows: – 

S. 79(1).  The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.

(2) The joint rules and orders must provide for the procedure for the reconsideration of a Bill by the National Assembly and the participation of the National Council of Provinces in the process.

(3) The National Council of Provinces must participate in the reconsideration of a Bill that the President has referred back to the National Assembly if—

       (a) the President’s reservations about the constitutionality of the Bill relate to a procedural matter that involves the Council; or

       (b) section 74(1), (2) or (3)(b) or 76 was applicable in the passing of the Bill.

(4)  If, after reconsideration, a Bill fully accommodates the President’s reservations, the President must assent to and sign the Bill; if not, the President must either—

       (a) assent to and sign the Bill; or

       (b) refer it to the Constitutional Court for a decision on its constitutionality.

(5) If the Constitutional Court decides that the Bill is constitutional, the President must assent to and sign it.

Sections 79 (1) to (3) have officially and rigorously been executed, so the President will now need to act in terms of S. 79(4) of the Constitution. 

South Africa commits to moving forward with copyright reform

South Africa has reiterated its commitment to moving forward with its copyright reform, so the President needs to sign the Bill without further delay. Draft Regulations can then be published for public comment, and finally the Copyright Amendment Act can be implemented for the benefit of all South Africans.

6 August 2024

What is becoming very evident in the fight against the South African Copyright Amendment Bill is that artists and other creators are being misled by the organisations and collecting societies that are supposed to support and protect them and provide them with fair remuneration. 

Since 2017, a coalition of representatives of collecting societies and rightsholders, and their legal advisors, have engaged on a strategy of disinformation and myth-sharing in the media, supposedly to oppose fair use provisions and other parts of the Copyright Amendment Bill.  Reading between the lines, though, it is very clear that these very same coalition members are fighting vehemently to protect their exploitative practices, and the status quo that has served them so well for decades.  Why would they want an amended Copyright Act that would ‘rock their economic boats, affect their profit-margins, and oblige them to be accountable and pay fair royalties to creatives?

There are enough scandals in the public media, listed below, to show that not all has been well for years between collecting societies and artists who depend on them to collect and pay fair royalties to them on a regular basis.  

• Four SA Collecting Societies collectively holding R1.17 billion in cash – egregious and a disgrace is the view, as well as an overdue and urgent call to order to order – where is the State oversight and the scrutiny of SARS, CIPC and the Reserve Bank? –
• Samro’s Dubai scandal deepens-
• Catastrophic decline in the South African music industry pt 1 –
• SA music industry exposed: the money is not going to the artists –
• Gospel shocker: How black musicians got screwed –
• SAMRO members demand answers over lost money –
• Mzansi artists sceptical of getting Samro royalties from TikTok, Netflix & Facebook –
• Collective management organisation (CMO’) musical and literary work performing right royalty collection……what gives? Navigating the landscape and options facing a Southern African Music Rights Organization (SAMRO) author/composer/arranger and/or adaptor member –
• The Public Domain and Unlawful Practices by CISAC collecting society members
• Non-juristic parties masquerading as SAMRO Publisher full members in the penumbra of SAMROs MOI, membership regulations and databases – …
• Kwaito legend Eugene Mthethwa tackles royalties from high office 
• South African music industry gutted
• Music association IMPRA accused of ‘swindling’ artists’ funds –
• SAMPRA AND SABC to go to Court over non-payment of royalties –
• Music industry problems still rising

The most telling official report that details the misadministration and failure of collecting societies to protect their members and to pay them royalties is the Copyright Review Commission Report 2011 by Judge Farlam.  Its findings were the reason that the process of amending the Copyright Act of 1978 commenced.  It is also the reason why an Amendment Bill (passed in 2019, reviewed in 2020/21 and passed again in 2022 with revisions based on stakeholders’ submissions and public hearings) is making its final leg through the National Council of Provinces right now.  This Bill and its sister bill, the Performers’ Protection Bill, provide remedies for many of the issues experienced by artists under the current Copyright Act, which ‘celebrates’ its 45^th birthday this year.  Apart from providing various protections and new rights to artists and other creatives, the Bill provides for the regulation of collecting societies to make them more transparent and accountable, to ensure that they pay artists and other creatives their fair due when it comes to royalties collected for the use and re-use of their copyright works.

On 25 August 2023, a group of artists under the banner of the Cultural and Creative Industry Federation of South Africa (CCIFSA), an organisation funded by the Department of Sport, Arts and Culture (DSAC), marched in Johannesburg to protest against the Copyright Amendment Bill, in particular the ‘Fair Use’ provisions.  Essentially, they were protesting against the DSAC, and the Department of Trade and Industry, as the Bill is part of Government’s efforts to support artists and other creatives and improve their income opportunities in the future. Speakers at the protest, blamed the Copyright Amendment Bill for artists dying as ‘paupers’ for decades, and fair use was presented as a ‘free-for-all’ tool for copyright infringement and piracy.  Ironically, much was said against the Bill, albeit disinformation, by the lawyer of one of the very same (unregulated) collecting societies that has failed its members by its wasteful expenditure on a (failed) collecting society initiative in Dubai and a distribution system costing millions that will probably never be used, amongst others. This is clearly a conflict of interest, too.  Also, the opening remarks of  reporter, Theodor Mashele, in a YouTube video on this march, incorrectly says that:  “For years the fair use clause has left artists with empty pockets …”   Another myth!   Fair use is not even in the copyright law yet!

Whilst CCIFSA, and their lawyer friend from SAMRO, ranted about artists being ‘paupers’, and how bad fair use is for artists, CCIFSA conveniently hid the fact that they are currently under investigation by the Special Investigations Unit (SIU) for the alleged mismanagement of millions of rands of public funds.   How hypocritical!  Pulling the wool over artists’ eyes to deflect from their own devious practices!   As Jack Devnarain, veteran actor and chairman of the South African Guild of Actors and strong supporter of the Copyright Amendment Bill, says:  “The issue of copyright reform has major long-term consequences for the creative sector, and shutting down the industry is no substitute for rational minds engaging in mature debate. Click here to read his article.

Well, let’s get some facts right here.  Artists have been dying as ‘paupers’ for years because of the lack of protective provisions for them in the Copyright Act of 1978, and the Performers’ Protection Act of 1967.  And, for all the reasons mentioned above with regard to collecting societies’ failure to pay fair royalties to artists and spend money wisely.  It has nothing to do with the Copyright Amendment Bill or fair use. The Bill with its ‘fair use’ clause has not been passed yet, so it is totally innocent of impoverishing or negatively affecting any creative’s life to date.  What the Bill will do is give artists and other creatives more control over their works, better protection against biased or unfair contracts, reversion of rights to exploit their works elsewhere if rightsholders do not make it beneficial for them, and very importantly, fair royalties and equitable remuneration that they have not received for decades.   It will also regulate collecting societies so that they become transparent and accountable to artists they represent.

Unfortunately, many artists and creators have not read the Bill, nor do they understand the complexities of the Bill, so they tend to follow media reports and false views of those with selfish agendas. There has been so much disinformation in the media, which has clearly caused much confusion for artists and other creatives. 

What is interesting is that some artists who were recently protesting against the Bill, had on previous occasions, publicly supported fair use, even at Parliamentary public hearings.   Could these artists just be totally confused, or have they been ‘captured’ or put under pressure to publicly support the self-serving agenda of collecting societies and rightsholders?

It is not fair use or the Copyright Amendment Bill, so who exactly is the ‘enemy’ of artists and other creatives in this copyright chess game? 

26 September 2023

The carefully planned and persistent strategy of intermediaries and multinationals to criticise and spread disinformation about the Copyright Amendment Bill has been blatant since the Draft Bill was first published by the Department of Trade and Industry (DTI) for public comment in 2015. 

As far back as the multi-stakeholder conference organised by the DTI in 2015, they have ‘trashed’ the Bill, and called it ‘shambolic’, ‘poorly drafted’, ‘substantively garbled, ‘legislative diarrhoea’ and a ‘major problem’ for creators and authors. They have made churlish comments and false assumptions about proponents of the Bill.   Opponents of the Bill have constantly ‘demonised’ fair use and called it a ‘free for all’ tool for piracy and mass infringement that will cause ‘catastrophic damage’ to the creative industries and cause serious job losses.  All doom and gloom, indeed!

Creatives are doing well in countries in fair use

My recent communications with experts in the IP Offices, or other experts in some countries that have adopted ‘fair use’ in their copyright law, e.g. South Korea, Israel, Philippines, Malaysia, Canada (expanded fair dealing) and Singapore, have presented a much more positive picture about ‘fair use’.

Since adopting ‘fair use’ in their copyright laws, not one of these countries has contemplated removing it or amending it. None of them have been accused of non-compliance with international IP treaties. None of them have found it too cumbersome to administer or to address through their respective courts.   None of them have evidence of ‘catastrophic damage’ or any of the doomsday crystal-ball predictions that rightsholders and collecting societies have presented in the media and copyright workshops over the years.  These countries have not experienced negativity from foreign investors or creative industries because of ‘fair use’ or other exceptions in their copyright law.  It seems their creative industries are productive and doing well.  Authors and creators continue to write and create, and creativity and innovation have benefitted from more flexibility and better access to information.  The study on Transplanting Fair Use Across the Globe: a Case Study Testing the Credibility of U.S. Opposition corroborates the above positive views on  ‘fair  use’.  The authors claim that “far from being a license to unauthorized copying, fair use offers a conceptual framework for a sophisticated legal analysis weighing the conflicting values and considerations promoted by copyright law.”  In the US, which has the largest and wealthiest publishing, entertainment, and IT industries, the value added by fair use industries was 16 percent of the U.S. economy in 2014, and would have increased incrementally since then.

Nigeria has a huge and expanding creative industry and saw fit to include Open fair dealing by including the words ‘such as’ (for more flexibility) and the four factors of fair use in Clause 20 of its new Copyright Act 8 of 2022, although it is still called fair dealing. 

Copyright Amendment Bill will benefit creators

The alignment of the Copyright Amendment Bill with the Constitution and human rights conventions and many developed countries’ progressive copyright laws will improve the lives of creators.  The Bill will help to ‘level the playing fields’ and give creators better opportunities going forward.

• Sections 6A(1)-9A provide creators with better opportunities to fair royalties and equitable remuneration. Watch video on ‘Actors demand fair royalties’.
• Section 7A-F will enable visual artists to benefit from a resale right.
• Section 12A-D increases access to information, especially in the digital arena.  Creators needs access to information to use, re-use, share, and to create new works from other copyright works.  It will enable fairer and reciprocal use of copyright works. Currently, countries with ‘fair use’ can lawfully use and reuse South African publications, yet South Africans cannot do the same with their publications, because ‘fair dealing’ is so restrictive.
• Sections 12D(7)(e), 22D and 39B prevent contractual override of lawful exceptions. This will stop third parties locking creators into unfair contracts. 
• Helpful exceptions such as in Sections 15(1)(a) and19B-D provide better access for education, academic activities, etc. Authors, creators, musicians, producers and publishers also engage in research, studies, teaching and learning, resource-sharing, AI, quotation, and other activities that require lawful unrestricted access to a wide range of copyright works.
• Sections 12A(vi), 12D and 19B-D enable libraries, archives, and other information services to assist creators when seeking information for personal or creative purposes.  These entities will also be able to digitise and preserve their collections to protect our cultural heritage for future generations.
• Section 19D provides for accessible formats for creators who may have dyslexia, visual, aural, or other disabilities. It also will enable South Africa to sign the 2013 Marrakesh Treaty so that accessible formats can be exchanged across borders.
• Section 20(1)-(2) gives creators better protection of their moral rights or reputational rights.
• Section 22A enables creators to use and re-use orphan works (untraceable rightsholders).
• Section 22B regulates collecting societies to ensure they are accredited, transparent and accountable to creators. Section 22B-D and Section 28S will give creators more control over their works and better remuneration.  The Performers’ Protection Bill is intrinsically linked to the Copyright Amendment Bill, which means, for the first time, performers will have the right to earn fair remuneration for repeat broadcasts. 
• Section 22(3) allows creators to reverse their copyright assignment after 25 years. This means they can then decide to renegotiate with the relevant rightsholders or exploit their works differently or elsewhere.

Intermediaries falsely represent creators

Intermediaries such as rightsholders and collecting societies representing composers and authors of literary and musical works (currently unregulated under our Copyright Act) continue to confuse creators by spreading inaccurate information and sketching dystopian scenarios in the media.  At a recent protest march in Johannesburg organised by the Cultural and Creative Industry Federation of South Africa (CCIFSA), an organisation funded by the Department of Sport, Arts and Culture (DSAC), it was blatant how some artists had been ‘coached’ what to say to oppose the Bill, despite the benefits for them.  Most participating artists appeared to be confused, especially since they had apparently never read the Bill and did not understand the complexities of copyright law. Some artists didn’t even know the difference between ‘fair dealing’ (i.e. the current legal dispensation applicable in South Africa), and ‘fair use’.  They cheered a lawyer from a collecting society for composers’ royalties, and gave her the podium to speak, despite her being there to push her employer’s selfish agenda. The audience clearly believed her disinformation about the effect of ‘fair use’.  Ironically, this is the very same collecting society that has been mired in controversy for many years in connection with wasteful expenditure of monies collected for creators, thereby exacerbating their financial hardships.  And, ironically, this is the same CCIFSA that is currently under investigation by the Special Investigations Unit (SIU) for the alleged mismanagement of millions of rands of public funds.  Clearly, they have no concern about poverty or financial difficulties suffered by artists they claim to represent.  How hypocritical! 

So, tell me – Who’s ‘pulling the wool over whose eyes’?

25 September 2023

The article in question is hyperbolic and based on a regurgitated complaint which has already been ignored repeatedly by several US administrations.    At the USTR’s public hearings on AGOA in Washington, DC, in early 2020, 34 out of 46 written submissions urged the USTR not to withdraw AGOA.  Despite calls at the time for South Africa to be listed as a “Priority Watch List” country, the USTR officially rejected this, and has rightfully excluded South Africa from its Watch Lists to date.    

Due to the US and EU’s undue pressure on President Ramaphosa, orchestrated by rightsholders in 2019 to stall the approved Bill, the President decided to send it back for review in mid-2020, on the grounds of constitutionality concerns.  After its detailed Parliamentary review during 2021/22, Bill B13D-2017 was approved by the National Assembly on 21 September 2022.  Due to the Bill being retagged as a Section 76 Bill, it also went through a new process, including written submissions from stakeholders, public hearings, online and in-person, and many deliberations in the National Council of Provinces and all the Provincial Legislatures. In early August 2023, after a voting process in, and reports by, the Provincial Legislatures, the National Council of Provinces voted on and approved the E-List of amendments.  In September 2023, the final Bill is expected to be presented to the Provincial Legislatures again for final mandates and votes, and then for approval by the National Council of Provinces at its Plenary meeting.  Thereafter, it will again proceed through the National Assembly for final approval before it goes to the President once again for assent.  

What is well-known is that in recent months AGOA issues have been raised again, due to South Africa’s relationship with Russia, and not because of the Copyright Amendment Bill, which has become a convenient ‘red herring’ in this matter.     

The following submissions to the USTR in early August strongly corroborate what stakeholders affirmed about AGOA in the 2020 USTR public submissions and hearings, and why many stakeholders strongly support the Bill – 

• American University Washington College of Law, Program of Information Justice and Intellectual Property – Prof. S. Flynn (US) and Prof. K. Beiter (SA)
• Congress of South African Trade Unions (COSATU)
• Library Copyright Alliance/ALA/ARL Submission to USTR

Also, see ‘Libraries Scold Rightsholders’ Attempt to Tweak South Africa’s Copyright Bill’.  

In my humble view, it would be naïve of the US to withdraw from AGOA, whilst Russia and China are ‘standing in the wings’.  Suffice to say, it is in the interests of the US to keep growing the potential future benefits that AGOA aims to promote and create for South Africans, but to ensure reciprocal benefits for farmers and other producers in the US.    

In fact, the Copyright Amendment Bill should be hailed by the US as an excellent legislative tool to improve access to information for all.  It would increase the number of readers, students, educators, and researchers, who would become potential buyers, researchers, and new creators of works. It would also enable established creators to access and lawfully use and re-use others’ works for their own creative purposes. A new eco-system for readership, creativity, innovation, and knowledge creation would be established.   In the process, the Bill would create a more constructive environment that will enhance the benefits of AGOA for South Africa and the US, through better access to and application of knowledge, new innovations and inventions, increased productivity, collaboration, and creativity in the agricultural and other relevant sectors addressed by AGOA.   

One has to question then why this article suggests that Copyright Amendment Bill could ‘sink AGOA’, and why copyright protections could be substantially lowered?   Both are false assumptions.   Firstly, the Bill has clauses similar to the US copyright law, as well as other progressive copyright laws in developed countries.  Secondly, there is a wealth of free, online legal resources globally, and IP experts and law libraries here and abroad that can be consulted, until such time as South Africa has developed its own jurisprudence, like other ‘fair use’ countries have successfully done. Thirdly, Section 24(3) of the 1978 Copyright Act already provides for statutory damages – See: South African Legal Expert Assessment of IIPA Petition of 18 April 2019, in respect of South African Copyright Amendment Processes. And, fourthly, South Africa is bound by ‘national treatment’ in IP agreements.   

The Bill has been ‘panel-beaten’ from all angles, since 2017.  It is now refined, confirmed by many IP experts, here and abroad, to be constitutional, and compliant with international IP commitments.  It will change the lives of millions of people in South Africa who have been deprived of accessing educational resources, and those requiring accessible formats to access information. It will not only improve the resources and quality of services offered by libraries, archives, and other information services but will also allow preservation and digital curation to protect their collections, and South Africa’s documentary records and cultural heritage.  Creatives will enjoy improved moral rights and more control over their works, obtain reversion of rights to further exploit their works, and have safeguards from unfair contracts. They will also earn fairer royalties, when collecting societies are regulated and finally become more transparent and accountable.  

The Bill will take South Africa into the 21^st century at last.   It has been hailed by many as a model for other countries, due to its progressive, balanced and future-proof approach, within a human rights framework.  Let there be no more delays or filibustering!    

Parliament must pass the Bill urgently! 

https://upload.wikimedia.org/wikipedia/commons/5/5c/E._Containerschiff_im_Orkan_-_Winter-Nordatlantik_1980.jpg. Licensed under CC BY-SA 4.0 

In my 38-year career as a professional librarian, 24 years of which were managing the Copyright Services Office at the University of the Witwatersrand, Johannesburg, I often pondered why academic authors appeared to show little interest in copyright issues, and seldom came to the table when legislative reforms were proposed.   

Back in 1998 and 2000 respectively, more restrictive Draft Regulations and Proposals to Amend the Copyright Act, endorsed by rightsholders, were published by the Department of Trade and Industry.  These proposed amendments threatened access to information and would have negatively impacted on teaching and learning, and research. They would also have restricted libraries and archives from carrying out their statutory mandates, and failed to address the real needs of people with disabilities. 

The educational sector and libraries, mandated by the predecessors of Universities SA (USAf) that represented both universities and technikons, set up task teams to challenge both sets of proposals. I was Convenor of both task teams, and a well-known intellectual property firm provided pro bono assistance to these teams for 18 months. As a result, both sets of proposals were withdrawn in toto.  What was disappointing was that few academics were involved in this process.  

Many academics whom I have assisted over the years appeared not to be concerned about copyright law or its reform.  Possibly it was because they had so many more pressing responsibilities to attend to. Perhaps they found copyright too complex, or personally, they did not see or experience the benefits of copyright for themselves or their students.  It was obvious that many found it more of an irritation or barrier, when trying to compile resources for teaching, or finding materials for research, or for resource-sharing with colleagues or fellow academics at other institutions, here and abroad. Many of them found that copyright compliance procedures created an unnecessary administrative burden for them or their staff, as they were obliged to complete and submit copyright forms for everything that they used for course materials. This attitude puzzled me at the time as I knew many of their own works were used for teaching purposes. Surely, they would be happy that records were being submitted so that when their own works were used, they would benefit from copyright fees too.  This did not seem to be the case. So, I sent a survey to academics at my institution at the time, asking one question only – “Do you receive monies from the collecting societies when your works are reproduced?”   Those who responded all said the same thing – “No, I have never received any copyright fees”. I was surprised because the institution’s library paid a few million Rands in licence fees annually to the reprographic rights organistion for all copies used in course-packs. The library presumed the monies were being paid to publishers and scholarly authors.  Seemingly, the publishers were the beneficiaries, not the scholarly authors.  Regrettably, this practice still seems to be the case today.  

The academics’ apparent apathy or antagonism towards copyright became more evident during the COVID-19 pandemic lockdown in 2020, when libraries and archives were closed and access to physical books and journals and multimedia were not possible.  Academics, lecturers, researchers, and students all had to switch to online teaching and learning, and library staff to online information services, at short notice. Time was of the essence, so librarians were called upon at all hours of the day and night to assist lecturers in finding resources and making materials accessible, whether through scanning material on to password-protected e-learning platforms, or digitising material, or providing e-books in place of the inaccessible hard-copies.  Frequently, academics and librarians were stymied, because the making of any copyright work available through scanning, digitisation, format-shifting or conversion from analogue format to digital format had to be cleared for copyright before reproduction or sharing with students. It is very possible that through sheer frustration, some academics even ignored copyright and went ahead and reproduced material, as the local reprographic rights organisation did not have a mandate to clear digital material, and they could not wait weeks or months to obtain permission from rightsholders, many abroad. 

Librarians also experienced many challenges with our restrictive copyright law in the lockdown, especially with the provision of materials to users, and their regular activities, such as reading to children or discussing books with adults in reading circles. In the analogue world, they have for decades been able to read extracts of books to users without any restrictions, and in the process, promote books and their authors. In the pandemic all this changed.  Librarians had to seek permission each time they wanted to scan or digitise extracts from works, or even read extracts from books or other reading material via an online platform or YouTube.  Because of lack of funding, many of them were not able to afford copyright fees so they could not offer some services or engage in reading programmes, especially for children. Others resorted to reading from out of copyright works or open access material to continue their services to their users. This was indeed unfortunate, especially since the reading abilities of many schoolchildren are below average.  Also, academics and students with disabilities were in desperate need of reformatted material and were forced to do without the material or find alternatives if copyright clearance was not possible within a short period of time.    

Public-funded institutions through blanket licences and transactional licences pay millions of Rands to a reprographic rights organisation for copyright clearance annually.  One would therefore assume that monies collected (after deducting their 25% plus admin fee) would be paid over to publishers, who in turn, would pay at least 50% of that money to the authors.  I knew that Wits Press paid authors 50% of all monies received from the reprographic rights organisation, so I naturally assumed this was normal practice amongst all publishers.  Unfortunately, this is not the case. 

Because of the Copyright  Review Commission’s Report (2011) about the failure of collecting societies to pay fair royalties to creators, and the many submissions and oral presentations made by collecting societies on the Copyright Amendment Bill, I thought it would be interesting to ask some academics the same question I had asked many years before: “Do you receive copyright fees when your works have been used for educational purposes?” I asked at least 15 senior academics, some with A-ratings from the National Research Foundation, or highly cited scholarly authors.  All of them had the same response: “No – I have never received a cent for the use of my publications”. 

The question must therefore be posed: “If this is the case, who benefits from the millions of Rands collected from the public universities by collecting societies every year?” Not authors, so it must be the publishers (mostly international) as nearly 70% of monies collected by the reprographic rights organisation in South Africa flows out to developed countries.  How exactly does copyright protect and benefit scholarly authors?  Clearly, it does not!   

It is difficult to understand how some academics strongly oppose copyright reform in South Africa. Our current copyright law has already been found to be unconstitutional by the Constitutional Court with regard to people with visual disabilities. Arguably, it is also unconstitutional relating to the lack of exceptions for musuems and galleries, orphan works, temporary copies, and the very limited exceptions for research, academic activities and education, and libraries and archives. Surely, they do not request copyright permission and pay fees for each and everything that they need to use for their research, teaching, or writing, or resource-sharing with colleagues and fellow researchers, especially in the digital space. This would be a huge hindrance to their work and productivity if they had to wait for permission before using or reusing any digital copyright material.   The current copyright law is very limited and essentially print-based, so the fair use provisions and limitations and exceptions for education and academic activities, libraries, museums and archives, and for people with disabilities in the Copyright Amendment Bill would be extremely helpful to all academics, authors, creators, lecturers, researchers and students.  

I found this very interesting and telling article from Peter Lor, an internationally recognised academic, scholarly author, researcher, lecturer and professional librarian. Perhaps he speaks on behalf of many scholarly authors who do not verbalise this, or those who fear ‘rocking the boat’ with publishers.  Having worked in the US for some years, Lor was fortunate to experience the benefits of fair use in his research, teaching, and when publishing.  Fair use allowed him access to information, use of other copyright works for teaching, resource-sharing and research, without having to apply for copyright permission and pay copyright fees every time he needed to write an article or use material for teaching or research purposes.  He could access works around the world, including South African publications under fair use.  Unfortunately, without fair use, South African academics, researchers and others cannot do the same, as fair dealing is very limited.  

Lor has authored over 200 published articles and book chapters. His work has quite often been prescribed or recommended by universities that have had to pay copyright fees to reproduction rights organisations here and abroad.  Yet, he has never received a cent from any of these organisations, nor any communication in this regard. He just presumed that the money was sent to the publishers.  Copyright clearly has not benefitted him as a scholarly author, academic, researcher or librarian.   

Lor’s view about scholarly publishing is clear (excluding student textbooks).  He believes that “the currency of scholarly authors is not money, but recognition, especially recognition in the form of citations”.  In other words, scholarly authors’ main incentive when doing research, writing, and publishing is not to earn money or lock their works behind paywalls, but to share their knowledge so that it reaches a wide audience and is cited and used around the world for the benefit of society. 

In his article he writes: “Access to information and knowledge is a precondition for quality education, internationally competitive research, R&D, and innovation. The barriers to access that are enshrined in our outdated legislation and that certain well-meaning parties seek to retain if not augment, prevent us from being internationally competitive. We are, as it were, fighting with one hand behind our back”. 

He believes that “opposition to the exceptions and limitations to copyright by parties arguing for the interests of foreign copyright holders is hypocritical in the extreme. All we want in the Bill is the fair use provisions that are already in place in the wealthy Western countries. They became wealthy at least in part because they had untrammelled access to information and knowledge when their economies were developing, but now they place obstacles in the development path of countries of the Global South. These obstacles are immoral and must fall”. 

As a scholarly author, academic and professional librarian myself, I must agree with Lor and all those academics, librarians, authors, creators and others who do support the Copyright Amendment Bill currently before the National Council of Provinces and Provincial Legislatures. They all want to see South Africans empowered and able to enjoy similar benefits to those enjoyed in many developed and some developing countries around the world. 

In the current copyright reform process, I have noticed that more academics have got involved in the debates and deliberations about the Copyright Amendment Bill. However, the numbers are small in relation to the large number of academics in our public and private tertiary institutions who are all affected by copyright, directly and indirectly.  A few academics have aggressively opposed the Bill, whilst others have strongly supported the Bill.  One group of progressive IP academics from various institutions has provided three joint Opinions on the Bill, made many written submissions, and have presented at public hearings.  Others have provided legal advice at the request of Parliament, to help edit and assist with drafting of revisions. Their contributions have been constructive and very helpful.  

The Bill has been strongly supported by organisations, institutions, library associations and many more, internationally, regionally and in South Africa.  Universities South Africa (USAf) and its Committee of Higher Education Libraries in South Africa (CHELSA) have both supported the Bill, as well as the National Council of Library and Information Services (NCLIS), the Higher and Further Education Disability Services Association (HEDSA), the Library and Information Association of South Africa (LIASA) and the Congress of South African Trade Unions (COSATU), the South African Democratic Teachers’ Union (SADTU) and many other organisations, institutions, NGOs, creatives, as well as Blind SA, DEAFSA, and other communities serving people with disabilities. 

Fearmongering and disinformation have been the strategy of many who oppose the Bill. This is unfortunate as it has caused confusion for the public.  Many have never read the Bill, nor have they made submissions or participated in the public hearings, yet they believe false tales about fair use and other exceptions in the media. This has been evident in many of the public hearings in the provinces. Once they have read and understood the complexities of the Bill, some have seen the benefits for themselves and others, and are now supporting the Bill.    

The Copyright Amendment Bill is a progressive piece of legislation designed for the benefit of all South Africans.  It was not designed to threaten livelihoods of authors or creators, or to weaken their protections or rights. It was not designed to cause catastrophic damage to the publishing and other creative industries, or to encourage plagiarism or piracy, or to erode contract law, or to damage our already fragile economy.  This has not happened in any other country that has similar exceptions.  In fact, the creative industries in countries with fair use in their copyright laws continue to flourish. One of the countries, the US, boasts the largest and wealthiest publishing, entertainment and IT industries in the world. The fair use economy accounts for 16% of U.S. GDP and employs roughly 1 in 8 Americans.  Nigeria has recently passed its new Copyright Act which has adopted the 4 factors of fair use and the words ‘such as’, to allow for flexibility and future-proofing, although they still call it ‘fair dealing’.

The Bill was designed to bring South Africa’s copyright law in line with our Constitution and other progressive countries that already benefit from similar provisions and exceptions.   

South Africa has for many years been supporting the African Group’s proposals at WIPO for a Treaty on Limitations and Exceptions. We hope that the Provincial process will move quickly, and that Parliament will pass the Bill soon – or else it will create an incongruent situation, where South Africa’s own copyright laws cannot do domestically, what it is asking for at the international level.   

I trust that facts, common sense, and the interests of all South Africans will prevail in the consideration of this Bill. Through this Bill, our copyright law takes a quantum leap into the 21st century and anticipates changes for SA to embrace the Fourth Industrial Revolution.  

It would be a sad day indeed if this Bill is ‘derailed’, due to misunderstanding, ongoing disinformation, political tactics, and/or pressure from industry and multinationals that favour huge profits over the critical needs of education, research, libraries, archives, and museums, authors and creators, and people with disabilities, particularly in the context of a developing country in transformation. 

Photograph acknowledgement: https://www.hippopx.com/en/library-book-school-education-literature-learn-knowledge-410551 – License to use Creative Commons Zero – CC0 

The project is supported by Arcadia, a charitable fund of Lisbet Rausing and Peter Baldwin.  Arcadia supports charities and scholarly institutions that preserve cultural heritage and the environment. It also supports projects that promote open access and all of its awards are granted on the condition that any materials produced are made available for free online. 

The project includes a regional project on the continent of Africa, coordinated by internationally recognised copyright experts, Teresa Hackett, EIFL, and Dr Dick Kawooya, University of South Carolina.  The R2R Steering Group that will advise EIFL on project activities in Africa, including advocacy, training, and events, is made up of leaders in libraries, education and copyright advocacy. They are Pedi Anawi, Coordinator Education International Regional Office (Ghana); Kathy Matsika, University Library Director, National University of Science & Technology (Zimbabwe); Ben Cashdan, Television Producer, Co-Chair ReCreate (South Africa); Denise Nicholson, Consultant, Scholarly Horizons (South Africa), and Sarah Kaddu, AfLIA Copyright and Legal Matters Working Group (Uganda).

The Right to Research Africa project aims to build a coalition of library, education and research advocates who are active and influential at WIPO and other fora involved in copyright issues, support the project’s Global Advocacy Network on issues related to Africa, and engage in stakeholder education and other activities towards the common goal of promoting the interests of research and education in international and domestic copyright policy. YouTube Channel.

During the week of 23 to 27 January 2023, PIJIP, EIFL and many other organisations met in South Africa to discuss issues around access to knowledge and the right to research for Africa.  International speakers and delegates included academics, IP experts, librarians, medical doctors, educators, students, digital project managers, Government officials, a South African Parliamentarian, WIPO Mission officials and others from the United States, Canada, Brazil, the UK and EU, South Africa and several other African countries.  

The first seminar was held at the University of Pretoria (UP). The keynote speakers were Professor Tawane Kupe, Vice-Chancellor, UP, and Dr Carlos Correa, Executive Director, South Centre (online).  The second seminar was held at the University of Cape Town (UCT).  The keynote speaker was Prof. Tobias Schonwetter, Director, IP Unit, UCT, and Honourable Judy Hermans, MP, Chairperson of the Portfolio Committee on Trade, Industry and Competition, South African Parliament.  

The two seminars were well attended in person and via Zoom.  Feedback from participants has been very positive. The sessions by way of brief presentations, case studies and vibrant discussions covered a variety of issues affected by copyright. The seminars highlighted the need for African countries to work together to acknowledge, advance, and promote the right to research, and to ensure African copyright laws address and enhance the right to research. 

The first three sessions of the Pretoria seminar are now available on YouTube. 

• R2R – Session 1;
• R2R – Session 2;
• R2R – Session 3.

Other videos will be made available in due course.

Photo by National Cancer Institute on Unsplash