South Africa’s Proposed Copyright Fair Use Right Should Be a Model for the World

• Sean Flynn, American University Washington College of Law
• Michael W. Carroll, American University Washington College of Law
• Peter Jaszi, American University Washington College of Law
• Ariel Katz, University of Toronto, Faculty of Law
• Leandro Mendonça, Universidade Federal Fluminense (UFF), Cultural Production Department
• Diane Peters, Creative Commons Corporation (HQ)
• Allan Rocha de Souza, Federal University of Rio de Janeiro (UFRRJ)

Copyright laws the world over are under massive pressure to reform to fit the digital environment. One key area often in need of reform is in the exceptions to copyright that enable the digital practices. Without exceptions, common practices may be illegal, such as sharing photos on social media, making technical copies to send and stream, and uploading excerpts to closed networks for student access.

None of these and dozens of other digital issues were considered when most of our laws were drafted in the 1970s. South Africa is on the cusp of reforming its law with a new hybrid exception that contains both a set of modern specific exceptions for various purposes and an open general exception that can be used to assess any use not specifically authorized.

A key benefit of the Bill is that its new exceptions are generally framed to be open to all works, uses, and users. Research shows that providing exceptions that are open to purposes, uses, works and users is correlated with both information technology industry growth and to increased production of works of knowledge creation. See Sean Flynn and Mike Palmedo, The User Rights Database: Measuring the Impact of Copyright Balance. PIJIP Working Paper 2017-03. (Link); Deloitte, Copyright in the digital age: An economic assessment of fair use in New Zealand, (Link).

In addition to a set of more open specific exceptions, the South Africa bill contains a well-crafted and unique general exception for “fair use.” The magic of the South African general exception is not in adopting the term “fair use.” The phrases “fair use” and “fair dealing” mean the same thing. The key change is the addition of “such as” before the list of purposes covered by the right, making the provision applicable to a use to a use for any purpose, as long as that use is fair to the author.

The four factors in the South African bill mirror those included in over a dozen of other countries around the world. See Jonathan Band, The Fair Use/ Fair Dealing Handbook (Link). But the provision is innovative in including helpful clarifications that reflect global trends in interpretation.

• In evaluating the purpose and character of the use, the provision helpfully instructs consideration of the core of a “transformative use” test – whether “such use serves a purpose different from that of the work affected.”
• The provision is also helpful in permitting commercial uses to be considered fair – defining as one factor to be considered whether the use “is of a commercial nature or for non-profit research, library or educational purposes.” It thus permits fair use to apply to uses in a commercial film, book or search engine under appropriate circumstances.
• Finally, the fourth factor of the test, focusing on market harm, is usefully clarified to focus on “the substitution effect of the act upon the potential market for the work in question.” The focus on “substitution effect” is important because copyright law is designed to protect consumer markets for protected works rather than licensing revenue in general.

The proposal is also noteworthy in rejecting the calls by some to include a fifth factor focusing on whether licenses for the intended use in question are available. The fourth factor already adequately protects the economic interests of copyright holders by asking whether there is any substitution effect of a given use in the market. As the Supreme Court of Canada has explained, “to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, … would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act ’s balance between owner’s rights and user’s interests.” CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 (CanLII), <http://canlii.ca/t/1glp0>, para 70

We believe that the South African proposal gets it just right. We commend its Parliament on both the openness of this process and on the excellent drafting of the proposed fair use clause. We are confident it will become a model for other countries around the world that seek to modernize their copyright laws for the digital age.