Defending Fair Use In South Africa

By Sean Flynn, Peter Jaszi, and Mike Carroll, American University Washington College of Law

On Wednesday the South African National Assembly vote on the Copyright Amendment Bill, which includes a new “fair use” right. Learned professors at the University of Stellenbosch have taken to calling the bill “shambolic”, and “an abomination.” It is certainly time for a little light to go with the heat.

WHAT FAIR USE IS – AN OPEN LIST

The proposed fair use provision is an opening of South Africa’s existing fair dealing right. Both the proposed fair use right and the current fair dealing exception are general exceptions that apply a common fairness test to authorize uses of protected material for various purposes. Both come into play when a rights holder sues a user who responds that her use is lawful.

Current South African law permits an otherwise fair dealing with a work for a closed set of purposes:

(1) Copyright shall not be infringed by any fair dealing with a literary or musical work-

(a) for the purposes of research or private study by, or the personal or private use of, the person using the work;

(b) for the purposes of criticism or review of that work or of another work; or

(c) for the purpose of reporting current events –

(i) in a newspaper, magazine or similar periodical; or (ii) by means of broadcasting or in a cinematograph film;

The new general exception refers to “uses” rather than “dealings,” but this is a mere semantic change.   What is important is that the new exception has a list of permissible purposes that is open, rather than closed, by virtue of the inclusion of the words “such as” in the first clause:

12A. (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.

The new clause will not bring about any change in how the fairness of a particular use is determined. Courts and commentators in South Africa have long applied a similar four-part test as provided in the Bill and that is reflected in many fair use and fair dealing laws.  (See Fair Use/Fair Dealing Handbook, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2333863). At bottom, the fairness test in both the new and old right require that for a use to be fair it must be for a purpose and in an amount that does not substitute for the work in the market.

Thus, the heart of the question is whether South Africa should retain its closed list of permitted purposes written in the 1970s, or open its list of permitted purposes for any analogous use that is fair.  There are fundamental reasons to think that the open list is far superior.

WHAT FAIR USE DOES – OPENING FOR INNOVATION

Many of the complaints of publishers emphasize that big technology companies support and benefit from fair use. The implication is that these companies are stealing works from local creators and distributing them for free. This is flatly untrue.

It is a myth that technology companies are trying to use fair use to provide free content on YouTube and similar entertainment platforms. YouTube over-licenses content through “content-ID” which requires licenses even for material that could be justly categorized as fair use – e.g. for film and music reviews that by their nature lawfully quote media content to review it. There is very little fair use on YouTube.

Technology companies everywhere support fair use not because they hope to steal the work of others, but because modern innovation using the Internet requires uses of information on the web that is technically copyright protected. It used to be that you had to register a copyright and include a notice to the public on any work intended to be protected. But today every expressed work — including every Internet page — is automatically subject to protection. In order to enable innovators to engage in projects that use information on the web — such as machine learning, large-scale indexing, and data mining — you need to have an exception from copyright.

The US provided the needed Internet-enabling exception in the 1970s by making fair use open. South Africa is now considering enabling the innovation of tomorrow by following a similar course.

FAIR USE DOES NOT PROMOTE LITIGATION

The currently-circulating petition claims that fair use “places the onus on the copyright owner to institute court proceedings to challenge unauthorised use of their work.” This criticism betrays lack of basic copyright knowledge. All copyright laws place the onus on right holders to sue infringers for alleged violations of the law. The onus is always on the defendant to prove any defense, including fair use. Shifting from fair dealing to fair use changes nothing in this regard.

It is sometimes claimed that adopting fair use will make South Africa litigious like the United States. But copyright law in the US is not a major litigation area. Copyright cases are just 0.75% of the federal docket, and fair use rulings make up just 0.004% of cases. There has been no reported explosion in litigation in Korea, Philippines, Israel, Singapore or other countries that have recently adopted fair use or flexible dealing.

FAIR USE WILL NOT DESTROY PUBLISHING

It is also untrue that broadening fair dealing decimated the publishing industry in Canada. When Canada expanded its fair dealing rights to include educational purposes, schools and universities continued to raise their spending on materials purchases, and publishers continued to increase sales and profits. The change was that some spending shifted from blanket licensing for copying to purchases of new books and other materials. (Geist 2018, http://www.michaelgeist.ca/2018/05/copyrightfairdealingeducationpartone/).

In South Africa, over 60 percent of books used in schools are locally published. (PASA 2013). But over 60 percent of DALRO licensing revenue goes to foreign publishers. (Copyright Review Commission). Local publishers thus stand to gain, not lose, from following Canada’s lead.

FAIR USE COMPLIES WITH INTERNATIONAL LAW

Finally, the bill does not violate international law. The argument that fair use violates the so-called 3-step test has been exhaustively dismantled by the academic literature. See P Samuelson Is the U.S. Fair Use Doctrine Compatible with Berne and TRIPS Obligations? (2018), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3228052; C Geiger; D Gervais and M Senftleben The Three-Step-Test Revisited: How to Use the Test’s Flexibility in National Copyright Law (2014), available at https://bit.ly/2pYExLa

To the extent that the Bill would authorize fair use in response to excessive pricing, it receives additional support from the World Trade Organization Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Article 40(2) of TRIPS grants additional flexibility to permit uses of works as a remedy to anticompetitive conduct:

2. Nothing in this Agreement shall prevent Members from specifying in their legislation licensing practices or conditions that may in particular cases constitute an abuse of intellectual property rights having an adverse effect on competition in the relevant market. As provided above, a Member may adopt, consistently with the other provisions of this Agreement, appropriate measures to prevent or control such practices

Adopting fair use is a policy change that should be subject to public debate. But let that debate be informed by facts, not hyperbole.

Image Credits: South Africa Parliament