Excerpt: We write to support the inclusion of a modern general exception in section 12 of the South African Copyright Act, and to offer refinements to the 2017 Bill’s proposal that we think would make it better serve the interests it promotes. General exceptions apply a single flexible balancing test (often defining what is “fair”) to authorise uses of copyrighted works for either an “open” or “closed” list of purposes. By open, we mean that the exception can apply to potentially any purpose, as in the United States, Israel, Malaysia and other countries. Closed list systems can only be applied to a purpose listed in the clause.
Often, general exceptions authorise “fair dealing” or “fair use” with protected works. More than 40 countries with over one-third of the world’s population have either a fair use or fair dealing provision in their copyright law.
The use of one common fairness test in a general exception promotes predictability and transparency in application because courts and users can refer to the same set of factors to be considered in individual cases. In this sense, a copyright general exception can operate much like the limitations clause in section 39 of the Constitution.
An open exception can serve as a kind of flexible catch-all — permitting decision-makers to justify uses of copyright that do not harm owner’s interests according to a common public interest test, regardless of whether the specific use in question was specifically foreseen by the legislature. Closed exceptions lack this element of flexibility, meaning that it is crucial that the list of authorized purposes be complete, and composed with an element of foresight into what the future may hold. Present South African law and the proposed law in the 2017 Bill apply only to a closed list of purposes. We advocate using an open list instead.
For the purpose of this submission, we generally use the term “fair use” to refer to an open general exception. In fact, the term is indeterminate. Many countries that have open general exceptions that we and others often refer to as “fair use” in fact use the term “fair dealing.” Malaysia and Singapore are prominent examples.