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Dear Honorable Chairman:

We write on behalf of the Project on the Right to Research in International Copyright, which is an activity of the Global Expert Network on Copyright User Rights. We write to advise that Parliament not eliminate “research” from among the specifically enumerated purposes for which the fair use exception in Section 12A may be applied, and to add a reference to “computational analysis” as a permitted purpose.

Parliament proposes to eliminate in section 12A reference to several purposes that are also protected in Section 12B for the expressed purpose of avoiding duplication. Other fair use provisions, including in the U.S., mention purposes that are also subject to specific exceptions elsewhere in the Act. This is important because fair use may extend to a use beyond those mentioned in a specific exception. And, by the same token, a specific exception can define uses that are exempt from copyright for reasons of public policy that are more specific than those embodied in fair use. These specific policy judgments can both clarify and expand the universe of lawful uses exempt under fair use, and fair use can in turn protect activities the legislature may not foresee in its specific exemptions. The two approaches may overlap in some cases, but they are complementary, not redundant. We therefore counsel against removing additional illustrative purposes in the fair use right for proffered purpose of avoiding duplication. 

In particular, we counsel for the reserving of the mention of “research” as a permitted purpose. Although inclusion of the “such as” language renders the list of enumerated purposes open, we advise that South Africa follow the examples of all other fair use and fair dealing countries and specifically mention “research” as a protected use of copyrighted materials. This is especially important because otherwise there would be no specific mention of research as a protected use in the Act.

Empirical research shows that more publication of citable research takes place in countries with “open” research exceptions — that is, exceptions that specifically mention “research” as a protected purpose and are open to all uses (e.g. reproduction and communication), to all works and to all users. Empirical research also shows that text and data mining research – often referred to as “computational analysis” — is promoted through exceptions that specifically authorize such practice as a protected purpose. Recent copyright reforms in Japan and Singapore are exemplary.

The CAB can take full advantage of the benefits of research exceptions in copyright by adding the following to the list of enumerated purposes protected by the fair use clause in section 12A:

(x) Scholarship and research, including computational analysis.

We finally note that the proposed addition of section 12A(d) appears duplicative and potentially harmful. The section could be read to require that the four factor fair use test be applied by courts in addition to the internal limitations already contained in each specific exception. Applying the fair use factors on top of these existing tests appears duplicative and may cause unintended consequences in the development of South Africa’s jurisprudence. 

We thank Parliament for its consideration and would be pleased to consult on these matters further. 

Signed,

Sean Flynn, American University Washington College of Law (counsel of record), on behalf of the Right to Research Academic Steering Committee:

  • Patricia, Aufderheide, American University, USA
  • Brandon Butler, University of Virginia, USA
  • Michael Carroll, PIJIP, USA
  • Jorge Contreras, University of Utah, USA
  • Carys Craig, York University, Canada
  • Christophe Geiger,  Luiss Guido Carli University, Rome
  • Michael Geist, University of Ottawa, Canada
  • Lucie Guibault, Dalhousie University, Canada
  • Christian Handke, Erasmus University, Rotterdam 
  • Ariel Katz, University of Toronto, Canada
  • Dick Kawooya, University of South Carolina, USA
  • Niva Elkin Koren, University of Haifa, Israel
  • Thomas Margoni, CiTiP, KU Leuven; CREATE, University of Glasgow,
  • Caroline Ncube, University of Cape Town, South Africa
  • Joao Pedro Quintais, IVIR, Netherlands
  • Allan Rocha, Federal University of Rio De Janeiro , Brazil
  • Matthew Sag, Loyola University School of Law, Chicago, USA
  • Rachael Samberg, University of California, Berkeley, USA
  • Arul Scaria, National University Delhi, India
  • Tobias Schonwetter, University of Cape Town, South Africa
  • Martin Senftleben, IVIR, Netherlands
  • Kimberlee Weatherall, University of Sydney, Australia
  • Ben White, Bournemouth University, UK