Rens and Ncube: Briefing on Copyright Flexibilities in South Africa

Last December, participants at a meeting on Limitations and Exceptions to Copyright hosted by IViR and PIJIP were asked to answer three questions relating to copyright law in their country. We are publishing their answers as blogs, after giving the participants a chance to review them.

Briefing on Copyright Flexibilities in South Africa

By Andrew Rens and Caroline Ncube

 

1.  Please provide a short (e.g. 250 word) description of your country or region’s copyright legal framework and current statutory provisions and judicial doctrines providing  for copyright limitations and flexibilities. You may include a general categorization (e.g. – closed list only, list plus fair use, list plus fair dealing) as well as a description of any notable or novel aspects to the law (e.g. a flexible quotation right, any open-ended exceptions, provisions for equitable remuneration, etc.). Please include a copy or link to your law.

Framework:

South Africa has a statutory copyright law framework. The Copyright Act, 98 of 1978, is an outdated piece of legislation which has its genesis in the country’s pre-democratic past, during which the government rejected the classification of the country as a developing nation.[1] Consequently, the legislature copied provisions verbatim from the United Kingdom, a developed nation, and failed to make full use of flexibilities available for developing nations.[2]

There is a closed list of statutory exceptions including fair dealing that are simultaneously narrow and vague but there is one notable exception; quotation in accordance with fair practise (s12(3)).[3] There is no case law on the various limitations and exceptions. Intermediaries such as publishers advance a very different interpretation of exceptions to interpretations by librarians, educators and the like.

 

2.  To help further indicate potential differences between legal systems in the countries under study, we are interested in very short indications (again, e.g. 250 words) of the rubrics under which the following cases might be analyzed in your country. Please don’t actually perform the analysis that a court would use.

a) How might your copyright law apply to use of illustrative (rather than critical) excerpts from a copyrighted fiction film in a commercial documentary?

RUBRICS:

The only reference to illustration is in the context of education and that would not extend to use in a commercial documentary.

“Section 12(4) provides for an exception for use of copyrighted work “by way of illustration . . . for teaching.” This exception seems relatively narrow. The primary purpose of the provision appears to be to allow teachers to use copyrighted material without license in their classroom or in ways otherwise linked to their teaching. It may be possible to interpret the exception to apply to use of copyrighted work in a film which is intended to be used primarily or exclusively for teaching. But it does not appear to give anything like a broad exception for all educational films.”[4]

Apart from education there is no specific illustration exception applicable.

“South African law does not explicitly provide such an exemption, although such use of copyrighted material might be construed to be a fair quotation in section 12(3) or a fair dealing for criticism or review in section 12(1).”[5]

Fair dealing is not applicable because fair dealing in relation to films is limited to criticism or review and reporting current events.[6] (s 16(1)).

b) How might your copyright law apply to digitization of a library’s special collection for the purpose of providing some level of online access to the general public?

Library digitisation

There are no statutory provisions that expressly provide for the digitisation of library collections. Similarly, there are no provisions that implicitly or indirectly apply to this.

“There are no provisions in the Copyright Act for reproduction or preservation of whole collections, or making works public, i.e. multiple copying or publishing works to a wide audience, as would occur if they were made accessible in a digital form.”[7]

“[The Copyright] Regulations also have limited reproduction exceptions for libraries and archives. Although the legislation is not media-specific,these exceptions are not practical in the digital environment.” (p9 Copyright and Related Matters, Denise Nicholson).

c) How might your copyright law apply to the following example of user-generated content that transforms a copyrighted work in a manner that is a spoof, but which lacks any criticism or comment on the copyrighted work itself: bit.ly/jrLT9h (Guitar Baby). As to each, please indicate:

i. Whether there is an existing legal provision under which it is clear that these cases would be analyzed, and (if not)

The first question to be determined in South Africa is whether the copying is substantial, if insubstantial then no reproduction contrary to an exclusive right has taken place. If the copying were substantial then a case like this would likely be analyzed under section 12(4):

“The copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work.”

(Section 12(3) is applied to cinematograph films (s 16(1), sound recordings (s17), broadcasts (s18), computer programs (s19B))

ii. Whether a court in your country might extend an existing limitation by analogy and/or analyze the issue by reference to some doctrine external to copyright?

A constitutional argument could be addressed to the court that the provisions of the Copyright Act should be read in terms of Section 16 of the Bill of Rights, and that accordingly the quotation right should be read expansively. Owen Dean, an academic authority argued in a pre-constitutional era that the section should be read as fair use ().[8]

The South African Constitutional Court has addressed use for purposes of parody, not in a copyright case but a trademark case.[9]

Conclusion: Such cases will probably be harder cases under existing South African law due to the lack of applicable statutory provisions and any relevant decided cases.

 

3.  Please provide a short (e.g. 250 words) description of the current political context around copyright law in your country. Please indicate, where relevant, whether any reform has been planned, the timeline for reform proposals, a description of any current or potential proposals or campaigns for expanding limitations and exceptions and any use cases that are prominent in the political conversation.

According to the government body responsible for administering the primary intellectual property laws, the Department of Trade and Industry a reform process is planned, however it will follow on and be influenced by the creation of an “innovation policy” by that Department. Politically the creation of copyright policy does seem to have been assigned to the Department of Trade and Industry, which is however also responsible for reforming corporate law, competition law and regulation, patents, trademarks and designs. Copyright is not a policy priority. There are however rumours of “anti-counterfeiting” legislation. There is currently a process to reform the regulation of collecting societies.  The Copyright Review Commission completed its public hearings in July 2011, however, its report has not yet been made public. [10] The approach of the government to intellectual property more generally seems to be to try to wring some advantage from it through “producing” more “intellectual property” for example the legislature recently passed Bayh-Dole type legislation.[11]

There is growing antagonism between a local intellectual property bar and a government department suspicious of the claimed technical expertise of that bar. The best illustration of this tension is the traditional knowledge legislation that was recently passed by the National Assembly and the lower house of Parliament and is currently awaiting presidential assent.[12] This amendment attempts to create categories of traditional knowledge copyright, trademark and design. The IP bar has been especially critical of this legislation.[13] An alternative piece of legislation has been recently published, in a last bid to halt the enactment of the Intellectual Property Laws Amendment Bill.[14]

A successful case arguing for a specific effective change to copyright appears to stand a far better chance of success in the current political climate than lobbying for copyright reform. Potentially important constitutional cases would include; striking down the prohibition on parallel import and arguing for an expansive reading of the quotation exception as a means of introducing fair use.

For further resources, see: https://uctipunit.wordpress.com/publications/

See also Articles 12 – 19B of the Copyright Act of 1978.