South Africa and other countries are currently considering proposals to convert from a “fair dealing” to a “fair use” user rights system. Some critics of the change fill their arguments with hyperbole without describing the facts about what is really at stake. This note attempts to dispel some common myths about fair use by describing what fair use is, and what is not.  

What fair use is

Fair use is an opening of fair dealing to include additional lawful purposes

The proposed fair use provision is an opening of South Africa’s existing fair dealing right. Both fair use and fair dealing are general exceptions that apply a common test of what is “fair” to a host of different purposes (e.g. criticism, etc.). Fair use is different mainly in including words “such as” before its list of permitted purposes. The effect is to make the list or permissible purposes of the use open to potentially any purpose. But the use still must be fair.

The openness of fair use enables innovation

A key value of opening of the purposes for fair use is to permit new technologies that cannot be foreseen by the legislator. When the first copyright laws were written they did not imagine the VCR, much less the Internet. Flexible fair use systems have been able to accomodate technological change by permitting a new technology developer to know their use can be defended from any challenge as long as long it meets the test of fairness.

Fair use promotes human rights

Copyright laws with insufficient exceptions for modern digital uses conflict with rights to free expression, education and access to culture. See UNESCO, Approaching Intellectual Property as a Human Right, http://unesdoc.unesco.org/images/0012/001255/125505e.pdf

Fair use serves creators

Fair use helps creators because it allows them to depict real life, respond to other works, and make new creative works without being censored by the owners of copyright.

Fair use benefits the economy

Empirical research has shown that fair use rights benefit both the creative and high technology industries. See http://infojustice.org/flexible-use/research

Fair use will benefit local publishers

In South Africa, over 60 percent of books used in schools are locally published. (PASA 2013). But over 60 percent of DALRO licensing revenue goes to foreign publishers. (Copyright Review Commission). When Canada broadened its fair dealing to include education, school purchases continued but shifted from collective licensing to site licenses and book purchases.

Fair use will benefit students

Fair use and the Act’s education rights make it easier for teachers to make materials students can afford. In South Africa University textbook costs frequently exceed R6,000 a year, with bursaries commonly below R4,000. 70 percent of higher education students obtain the majority of their materials through digital sharing.

What fair use is not

Fair use isn’t a free-for-all

Fair use is not carte blanche to use other people’s work without paying. A key test for whether a use is fair asks whether the use would deprive the author of revenue by substituting for the need to buy the work. Piracy is not fair use.  

Educational fair use would not allow schools to give away books

The Bill specifically provides that coursepacks or other forms of copying may not “incorporate the whole or substantially the whole of a book or journal issue, or a recording of a work” under normal circumstances. (12D(2)). It authorizes copying of full works only if “a licence to do so is not available from the copyright owner . . .  on reasonable terms and conditions”; “where the textbook is out of print”; or “where the owner of the right cannot be found”. (Copyright Amendment Bill Section 12D(3)-(4). In each case, copying is not permitted for commercial gain, (12D(5)), and the copying must be restricted to the “extent justified by the purpose.”

Fair use does not shift the burden of proof to the rights holder

There is an odd argument circulating in South Africa that fair use shifts a litigation burden onto a rights holder. This is flatly untrue. Fair use is a defense to infringement. Like other defenses, the user carries the burden of proving the defense — i.e. showing fairness of the use.

Fair use did not harm the Canadian publishing industry

It is a myth that flexible copyright exceptions undermined educational publishing in Canada. Spending on published works remains strong. Spending on educational materials has not declined. See https://www.ip-watch.org/2017/07/25/fair-dealing-not-destroying-canada-publishing/              

Fair use does not drive up litigation or litigation costs

Copyright law in the US is not a major litigation area. A review of a sample of all federal court cases in a recent year found that all copyright cases just 0.75% of the US Federal docket, and fair use rulings make up just 0.004% of cases. There has been no reported explosion in litigation in Korea, Philippines, Israel, Singapore or other countries that recently adopted fair use.

Fair use is not a giveaway to Youtube

Fair use doesn’t let anyone avoid paying a license to play, perform, or copy a work in a way that substitutes for the market of the copyright owner. There is little or no commercial fair use on Youtube. Content ID allows the copyright holder to monetize (receive the advertising revenue from) any use of their work on YouTube, even for uses that would be a fair use under US law.    

Fair use will not cause unpredictability

Under fair use, as today, any use of a work that could substitute for the use of the original in the market would need to be licensed. This is a simple understandable test already applied by South African courts under the current fair dealing standard.  

For more information on fair use, see:  https://libguides.wits.ac.za/Copyright_and_Related_Issues/fairuse_fairdealing