Mike Palmedo and Margarita Gorospé
In April 2019, the International Intellectual Property Alliance (IIPA) petitioned the U.S. Trade Representative to review South Africa’s GSP benefits. IIPA alleges that South Africa fails to provide “adequate and effective” protection of copyrighted works, that its pending Copyright Amendments Bill would worsen IP protection, and that South Africa should therefore lose its trade benefits under the GSP program.
The IIPA petition makes a number of claims about Copyright Amendments Bill, many of which are addressed in GSP comments submitted by the South African government.
IIPA notes the following concern with the quotations exception in South Africa’s Copyright Amendments Bill:
Section 12B(1)(a) provides a broad and circular exception for quotation, permitting any quotation provided that “the extent thereof shall not exceed the extent reasonably justified by the purpose,” but without enumerating the permitted purposes, for example, criticism and review.
However, this type of language is not uncommon. Daniel Seng’s Updated Study And Additional Analysis Of Study On Copyright Limitations And Exceptions For Educational Activities, prepared for WIPO, finds that many individual copyright laws include quotation exceptions that use some variant of language allowing quotations as long as the use of the original work is “justified by its purpose.” Some of these do not explicitly enumerate permitted purposes, some do.
We reviewed the subset of laws cited by the Seng report that are available in English in the WIPO Lex database to see how many did or did not explicitly enumerate permitted purposes. Out of 65 laws allowing quotations to the extent justified by their purpose, only about a third – 24 – included a list of “permitted purposes.” The other 41 contained no such limiting language.
30 of the 41 laws that did not enumerate specific purposes did subject the use to a fairness test.
One example of a law that allows quotations to the extent necessary for the purpose its used, subject to a fairness test, is the UK law:
Copyright in a work is not infringed by the use of a quotation from the work (whether for criticism or review or otherwise) provided that—
a) the work has been made available to the public,
b) the use of the quotation is fair dealing with the work,
c) the extent of the quotation is no more than is required by the specific purpose for which it is used, and
d) the quotation is accompanied by a sufficient acknowledgement (unless this would be impossible for reasons of practicality or otherwise)
For more examples, use the table below. All of the provisions included use some variant of “Justified by the purpose” language, and the laws can be found in WIPO Lex.
| Country | Law – Article | Purpose Defined? | Fairness Test |
| Andorra | Law on Copyright and Neighboring Rights 1999 – Art 8 | No | Yes |
| Armenia | Law on 4 July 2006 No. 3R-142 on Copyright and Related Rights (as amended up to 30.09.2013)- Art 22(2)(a) | Yes | No |
| Belarus | Law of the Republic of Belarus No. 262-3 of May 17, 2011, on Copyright and Related Rights – Art 32.2 | Yes | No |
| Bhutan | Copyright Act of the Kingdom of Bhutan, 2001 – ss 11, 27d | No | Yes |
| Bolivia | Law No.1322 of April 13, 1992, on Copyright – art 24 | Yes | No |
| Botswana | Copyright & Neighboring Rights Act, 2000 (Act No. 6 of 2006) – s14 | No | Yes |
| Brunei Darussalam | Emergency (Copyright) Order, 1999 – s34 | No | Yes |
| Burundi | Law No. 1/021 of December 30, 2005, on the Protection of Copyright and Related Rights in Burundi – Art. 26.1(b) / Art 82(d) | No | No |
| Cambodia | Law on Copyright and Related Rights – Art 28 Art 25 | Yes | No |
| Colombia | Law No. 23 of January 28, 1982, on Copyright – Art 31 | No | No |
| Congo | Law No. 24/82 of July 7, 1982 on Copyright and Neighbouring Rights – Art 33.1.b | No | Yes |
| Costa Rica | Law No. 6683 of October 14, 1982 on Copyright and Related Rights (as last amended by Law No.8834 of May 3, 2010) – Art 70 | No | No |
| Croatia | Copyright and Related Rights Act and Acts on Amendments to the Copyright and Related Rights Act (OG Nos. 167/2003, 79/2007, 80/2011, 141/2013 & 127/2014) – Art 90 | Yes | Yes |
| Djibouti | Law No. 154/AN/06 of 23 July 2006 on the Protection of Copyright and Neighboring Rights – Art 54.b | No | Yes |
| Dominica | Copyright Act 2003 (Act 5 of 2003) – s65 | No | Yes |
| Ecuador | Intellectual Property Law (Consolidation No. 2006-13) – Art 83(a) | Yes | No |
| El Salvador | Law on the Promotion and Protection of Intellectual Property Rights (Legislative Decree No. 604 of 15 July 1993) – s46 | No | No |
| Ethiopia | Copyright and Neighboring Rights Protection Proclamation No. 410/2004 – art 10 | No | Yes |
| Gambia | Copyright Act, 2004 – s 29 | No | Yes |
| Georgia | Law of Georgia on Copyright and Neighboring Rights (last amended as of May 4, 2010) – Art 23(a) | Yes | No |
| Greece | Law No. 2121/1993 on Copyright, Related Rights and Cultural Matters (as amended up to Law No. 4281/2014) – Art 19 | No | Yes |
| Grenada | Copyright Act (Cap 67, Act No. 21 of 2011) – S10 | Yes | No |
| Ireland | Copyright and Related Rights Act, 2000 (No. 28 of 2000) – S51 | No | Yes |
| Kyrgyzstan | Law of the Kyrgyz Republic on Copyright and Related Rights (as amended up to Law No.14 of January 21, 2014) – Art. 19.1.1 | Yes | no |
| Lao PDR | Law No. 01/NA of December 20, 2011, on Intellectual Property (as amended) – Art. 111.1.1 | No | No |
| Latvia | Copyright Law (as last amended on April 18, 2013) – s 20.(1).1 | Yes | no |
| Lesotho | Copyright Order 1989 (Order No.13 of 1989) – s 9(a)(ii) | No | Yes |
| Malawi | Copyright Act, 1989 – s 10(a)(ii) | Yes | No |
| Malaysia | Copyright Act 1987 (Act 332, as at 1 January 2006) | Yes | Yes |
| Malaysia | Copyright (Amendment) Act 2012 (Act A1420) – s 13(2)(a) | yes | yes |
| Maldives | The Copyright and Related Rights Act – s 14 | No | Yes |
| Maldives | The Copyright and Related Rights Act | no | yes |
| Malta | Copyright Act of 2000 (Chapter 415) as amended up to Act No. VIII of 2011 – Art. 9(1)(k) | No | Yes |
| Malta | Copyright Act of 2000 (Chapter 415) as amended up to Act No. VIII of 2011 | No | Yes |
| Mauritius | Copyright Act of 2014 – S 18 | Yes | yes |
| Montenegro | Law No. 07-1/11-1/15 of July 12, 2011, on Copyright and Related Rights (promulgated by Decree No. 01-933/2 of July 25, 2011) – Art. 53 “quotation is used to extent required by the purpose” | Yes | Yes |
| Morocco | Law No. 2-00 on Copyright and Related Rights (promulgated by Dahir No. 1-00-20 of 9 Kaada 1420 (15 February 2000) – Art. 14 – “justified by the aim to be achieved” | No | No |
| Mozambique | Law No. 4/2001 of February 27, 2001 (Copyright Law, approved by Decree-Law No. 46.980 of April 27, 1966) Art. 47(b)/Art. 10 – “quotations justified by their informatory purpose”/”does not exceed what is necessary to achieve its purpose” | No | No |
| Namibia | Copyright and Neighbouring Rights Protection Act, 1994 (Act No. 6 of 1994) – s50(2)(b) | Yes | No |
| New Zealand | New Zealand Copyright Act 1994 (No. 143) (reprint as at 1 January 2014) – s 42(1) | Yes | yes |
| Niger | Niger – Decree No. 93-027 of March 30, 1993, on Copyright, Neighbouring Rights and Folklore – Art. 10 | No | Yes |
| Oman | Royal Decree No. 65/2008 promulgating the Law on Copyright and Related Rights Art. 20.1 – “extent of the desired purpose and justified by such goal” | yes | No |
| Papua New Guinea | Copyright and Neighbouring Rights Act 2000 – S 10 | No | Yes |
| Paraguay | Law No. 1328/1998 on Copyright and Related Rights – Art 40 | No | No |
| Peru | Copyright Law (Legislative Decree No. 822 of April 23, 1996) | No | No |
| Philippines | Republic Act No. 8293, Intellectual Property Code of the Philippines, as amended by Republic Act No. 10372, entitled ‘An Act Amending Certain Provisions of Republic Act No. 8293, otherwise known as the ‘Intellectual Property Code of the Philippines’, and for other purposes’ – s 184.1(b) | No | Yes |
| Qatar | Law No. 7 of 2002 on the Protection of Copyright and Related Rights – Art. 18(3) | Yes | Yes |
| Republic of Moldova | Law No. 139 of July 2, 2010, on Copyright and Neighbouring Rights – Art. 28(a) – “use to the extent required by the specific purpose” | Yes | No |
| Romania | Law No. 8 of March 14, 1996 on Copyright and Neighboring Rights – Art. 33(1)(b) – “to the extent justified by use” | Yes | No |
| Rwanda | Law No. 31/2009 of 26/10/2009 on the Protection of Intellectual Property – arts. 205, 247(5) | No | Yes |
| Saudi Arabia | Copyright Law (promulgated by Royal Decree No. M/41 of 2 Rajab, 1424 (August 30th,2003)) – Art. 15(2) | No | No |
| Seychelles | Copyright Act, 2014 (Act No. 5 of 2014) – S 11 | No | Yes |
| South Africa (This is the existing law, not the legislation) | Copyright Act, 1978 (Act No. 98 of 1978, as amended up to Copyright Amendment Act 2002)- S 12(3) | No | Yes |
| Sri Lanka | Intellectual Property Act, No. 36 of 2003 – S 12(3) | No | Yes |
| Sweden | Act on Copyright in Literary and Artistic Works (1960:729), as amended up to April 1, 2011 – Art. 22 – “extent necessary for the purpose” | No | No |
| Switzerland | Federal Act of October 9, 1992 on Copyright and Related Rights (status as of January 1, 2011) – Art. 25 | Yes | No |
| The…Macedonia | Law on Copyright and Related Rights (31 Aug 2010) – Art. 52(1).7 – “in a scope and to the extent required by the specific purpose” | Yes | No |
| Tonga | Copyright Act (Act. No. 12 of 2002) – S 10 | No | Yes |
| Trinidad and Tobago | Copyright Act, Cap. 82:80 (Act 8 of 1997, Amended by Act 18 of 2000 and Act 5 of 2008) – S 10 | No | Yes |
| Uganda | The Copyright and Neighbouring Rights Act, 2006 – S 34(d) – “justified by the informative purpose of the quotations” | No | Yes |
| United Kingdom | Copyright, Designs and Patents Act 1988 (c. 48), revised and updated as of (as of Apr. 11, 2016) – s 30(1ZA); Schedule 2, para. 2(1ZA) – “extent of quotation is no more than required by specific purpose for which it was used” | No | Yes |
| United Republic of Tanzania | Copyright and Neighbouring Rights Act, 1999 – s 12(2)(b) | No | Yes |
| Vanuatu | Copyright and Related Rights Act 2000 (No. 42 of 2000; version dated 8 February 2011) – S 12 | No | Yes |
| Venezuela | Law on Copyright (of August 14, 1993) – Art. 46.1 | Yes | No |
| Zimbabwe | Copyright and Neighbouring Rights Act (Chapter 26:05) – s 31 | No | Yes |
