• Home
  • About Us
    • About Us
    • Subscribe
    • Privacy Policy
  • Advertise
    • Advertise On IP Watch
    • Editorial Calendar
  • Videos
  • Links
  • Help

Intellectual Property Watch

Original news and analysis on international IP policy

  • Copyright
  • Patents
  • Trademarks
  • Opinions
  • People News
  • Venues
    • Bilateral/Regional Negotiations
    • ITU/ICANN
    • United Nations – other
    • WHO
    • WIPO
    • WTO/TRIPS
    • Africa
    • Asia/Pacific
    • Europe
    • Latin America/Caribbean
    • North America
  • Themes
    • Access to Knowledge/ Open Innovation & Science
    • Food Security/ Agriculture/ Genetic Resources
    • Finance
    • Health & IP
    • Human Rights
    • Internet Governance/ Digital Economy/ Cyberspace
    • Lobbying
    • Technical Cooperation/ Technology Transfer
  • Health Policy Watch

South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World

24/07/2018 by Intellectual Property Watch 3 Comments

Share this:

  • Click to share on Twitter (Opens in new window)
  • Click to share on LinkedIn (Opens in new window)
  • Click to share on Facebook (Opens in new window)
  • Click to email this to a friend (Opens in new window)
  • Click to print (Opens in new window)

The views expressed in this article are solely those of the authors and are not associated with Intellectual Property Watch. IP-Watch expressly disclaims and refuses any responsibility or liability for the content, style or form of any posts made to this forum, which remain solely the responsibility of their authors.

Sean Flynn, American University Washington College of Law
Michael W. Carroll, American University Washington College of Law
Peter Jaszi, American University Washington College of Law
Ariel Katz, University of Toronto, Faculty of Law
Leandro Mendonça, Universidade Federal Fluminense (UFF), Cultural Production Department
Diane Peters, Creative Commons Corporation (HQ)
Allan Rocha de Souza, Federal University of Rio de Janeiro (UFRRJ)

Copyright laws the world over are under massive pressure to reform to fit the digital environment. One key area often in need of reform is in the exceptions to copyright that enable the digital practices. Without exceptions, common practices may be illegal, such as sharing photos on social media, making technical copies to send and stream, and uploading excerpts to closed networks for student access.

None of these and dozens of other digital issues were considered when most of our laws were drafted in the 1970s. South Africa is on the cusp of reforming its law with a new hybrid exception that contains both a set of modern specific exceptions for various purposes and an open general exception that can be used to assess any use not specifically authorized.

A key benefit of the Bill is that its new exceptions are generally framed to be open to all works, uses, and users. Research shows that providing exceptions that are open to purposes, uses, works and users is correlated with both information technology industry growth and to increased production of works of knowledge creation. See Sean Flynn and Mike Palmedo, The User Rights Database: Measuring the Impact of Copyright Balance. PIJIP Working Paper 2017-03, http://infojustice.org/flexible-use/research; Deloitte, Copyright in the digital age: An economic assessment of fair use in New Zealand [pdf], https://www2.deloitte.com/content/dam/Deloitte/nz/Documents/Economics/dae-nz-copyright-fair-use.pdf

In addition to a set of more open specific exceptions, the South Africa bill contains a well-crafted and unique general exception for “fair use.” The magic of the South African general exception is not in adopting the term “fair use.” The phrases “fair use” and “fair dealing” mean the same thing. The key change is the addition of “such as” before the list of purposes covered by the right, making the provision applicable to a use to a use for any purpose, as long as that use is fair to the author.

The four factors in the South African bill mirror those included in over a dozen of other countries around the world. See Jonathan Band, The Fair Use/ Fair Dealing Handbook [pdf],  http://infojustice.org/wp-content/uploads/2013/04/Band-and-Gerafi-04032013.pdf. But the provision is innovative in including helpful clarifications that reflect global trends in interpretation.

  • In evaluating the purpose and character of the use, the provision helpfully instructs consideration of the core of a “transformative use” test – whether “such use serves a purpose different from that of the work affected.”
  • The provision is also helpful in permitting commercial uses to be considered fair – defining as one factor to be considered whether the use “is of a commercial nature or for non-profit research, library or educational purposes.” It thus permits fair use to apply to uses in a commercial film, book or search engine under appropriate circumstances.
  • Finally, the fourth factor of the test, focusing on market harm, is usefully clarified to focus on “the substitution effect of the act upon the potential market for the work in question.” The focus on “substitution effect” is important because copyright law is designed to protect consumer markets for protected works rather than licensing revenue in general.

The proposal is also noteworthy in rejecting the calls by some to include a fifth factor focusing on whether licenses for the intended use in question are available. The fourth factor already adequately protects the economic interests of copyright holders by asking whether there is any substitution effect of a given use in the market. As the Supreme Court of Canada has explained, “to license people to use its work and then point to a person’s decision not to obtain a licence as proof that his or her dealings were not fair, … would extend the scope of the owner’s monopoly over the use of his or her work in a manner that would not be consistent with the Copyright Act ’s balance between owner’s rights and user’s interests.” CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1 SCR 339, 2004 SCC 13 (CanLII), <http://canlii.ca/t/1glp0>, para 70

We believe that the South African proposal gets it just right. We commend its Parliament on both the openness of this process and on the excellent drafting of the proposed fair use clause. We are confident it will become a model for other countries around the world that seek to modernize their copyright laws for the digital age.

South Africa’s Proposed Fair Use Right

  1. (1) (a) In addition to uses specifically authorised, fair use in respect of a work or the performance of that work, for purposes such as the following, does not infringe copyright in that work:
    (i) Research, private study or personal use, including the use of a lawful copy of the work at a different time or with a different device;
    (ii) criticism or review of that work or of another work;
    (iii) reporting current events;
    (iv) scholarship, teaching and education;
    (v) comment, illustration, parody, satire, caricature, cartoon, tribute, homage or pastiche;
    (vi) preservation of and access to the collections of libraries, archives and museums; and
    (vii) ensuring proper performance of public administration.

(b) In determining whether an act done in relation to a work constitutes fair use, all relevant factors shall be taken into account, including but not limited to—

(i) the nature of the work in question;
(ii) the amount and substantiality of the part of the work affected by the act in relation to the whole of the work;
(iii) the purpose and character of the use, including whether—
(aa) such use serves a purpose different from that of the work affected; and
(bb) it is of a commercial nature or for non-profit research, library or educational purposes; and

(iv) the substitution effect of the act upon the potential market for the work in question.

 

Image Credits: eIFL

Share this:

  • Click to share on Twitter (Opens in new window)
  • Click to share on LinkedIn (Opens in new window)
  • Click to share on Facebook (Opens in new window)
  • Click to email this to a friend (Opens in new window)
  • Click to print (Opens in new window)

Related

Creative Commons License"South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World" by Intellectual Property Watch is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License.

Filed Under: Features, Inside Views, IP Policies, Language, Themes, Venues, Access to Knowledge/ Education, Africa, Copyright Policy, English, Information and Communications Technology/ Broadcasting, Regional Policy

Trackbacks

  1. DöntésfigyelÅ‘ #2.2 – COPY21 says:
    31/07/2018 at 1:57 pm

    […] Plusz egy reform: fair use szabályok Dél-Afrikában – Az Intellectual Property Watch írása szerint a dél-afrikai jogalkotók is épp benne vannak egy alapos reformfolyamatban, amelynek eredményeként fair use szabályozást kívánnak bevezetni. Ez már csak azért is érdekes, mert a volt brit gyarmatok jobbára az angol fair dealing rendszereket vitték tovább függetlenné válásuk után, a fair use pedig alapvetően az Egyesült Államok jogrendszerében szilárdult meg. Habár az IPWatch írásának szerzői szerint a két intézmény között csak annyi a különbség, hogy “such as”, vagyis a fair use több felhasználásra alkalmazható. (Ezt azért én így ilyen formában vitatom.) A tervezet egyébként így hangzik: […]

    Reply
  2. Amenazas contra medio PÁGINA 66 para eliminar información sobre corrupción en Internet | Artículo 19 says:
    26/10/2018 at 6:45 pm

    […] [4] Intellectual Property Watch. Inside Views: South Africa’s Proposed Copyright Fair Use Right Should Be A Model For The World. Publicado en julio de 2018. Disponible en: http://www.ip-watch.org/2018/07/24/south-africas-proposed-copyright-fair-use-right-model-world/. […]

    Reply
  3. South Africa: National Assembly Passes Copyright Amendment Bill, Adopts Expansive Fair Use Exception | Stone Law, P.C. says:
    21/12/2018 at 4:28 pm

    […] to a use … for any purpose, as long as that use is fair to the author. (Sean Flynn et. al., Inside Views: South Africa’s Proposed Copyright Fair Use Right Should Be a Model for the World, INTELLECTUAL […]

    Reply

Leave a Reply Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

  • Email
  • Facebook
  • LinkedIn
  • RSS
  • Twitter
  • Vimeo
My Tweets

IPW News Briefs

Saudis Seek Alternative Energy Partners Through WIPO Green Program

Chinese IP Officials Complete Study Of UK, European IP Law

Perspectives on the US

In US, No Remedies For Growing IP Infringements

US IP Law – Big Developments On The Horizon In 2019

More perspectives on the US...

Supported Series: Civil Society And TRIPS Flexibilities

Civil Society And TRIPS Flexibilities Series – Translations Now Available

The Myth Of IP Incentives For All Nations – Q&A With Carlos Correa

Read the TRIPS flexibilities series...

Paid Content

Interview With Peter Vanderheyden, CEO Of Article One Partners

More paid content...

IP Delegates in Geneva

  • IP Delegates in Geneva
  • Guide to Geneva-based Public Health and IP Organisations

All Story Categories

Other Languages

  • Français
  • Español
  • 中文
  • اللغة العربية

Archives

  • Archives
  • Monthly Reporter

Staff Access

  • Writers

Sign up for free news alerts

This site uses cookies to help give you the best experience on our website. Cookies enable us to collect information that helps us personalise your experience and improve the functionality and performance of our site. By continuing to read our website, we assume you agree to this, otherwise you can adjust your browser settings. Please read our cookie and Privacy Policy. Our Cookies and Privacy Policy

Copyright © 2021 · Global Policy Reporting

loading Cancel
Post was not sent - check your email addresses!
Email check failed, please try again
Sorry, your blog cannot share posts by email.