Abstract

The Copyright Amendment Bill (‘the Bill’) seeks to introduce several changes to the copyright system; starting with the controversial introduction of the fair use exception to the South African landscape. This exception is used by jurisdictions such as the United States of America (US), thoroughly interpreted by courts to determine its parameters and allows for a broader list of uses of works ordinarily protected by copyright. Fair use is largely dependent on an array of open-ended factors, which have up until now been applied by courts on a case-by-case basis.
Critics of fair use cite legal uncertainty as the primary basis for their argument that South Africa should retain its fair dealing exception as it is currently formulated in the Copyright Act 98 of 1978. They further argue that fair dealing provides copyright holders with more control over the use of their works and view the list of acceptable uses of protected works under fair dealing as certain. Additionally, critics are of the view that, should fair use be introduced to the South African copyright system, it will be in direct contravention of the country’s obligations under the Berne Convention and the TRIPS Agreement.
There is, however, evidence that the fair use exception has been successfully applied in jurisdictions such as the US and Singapore , and thus judicial guidance and other examples from South Africa’s international counterparts could easily remedy these concerns. This article argues that the critics’ views on fair use are an exaggeration and a tactic to have South Africa remain complacent in the face of global advancements made in respect of technology.
This article argues that fair use should be introduced to the South African copyright system , and will show that while this exception may be new to this jurisdiction, it will not be difficult to implement and for the courts to navigate. It argues further that fair use will serve copyright holders more in a landscape riddled with uncertainty as a result of emerging technology such as artificial intelligence (AI).