Fair dealing and online learning in the time of coronavirus in South Africa

As universities across the world respond to the coronavirus outbreak by moving classes online, there have been concerns that IP law (particularly, copyright law) may pose a challenge to online teaching and learning.

Several university library copyright specialists across the US have issued a Public Statement on “Fair Use & Emergency Remote Teaching & Research”. The Statement offers comfort for teachers and learners in jurisdictions where the fair use exception holds sway. Questions have been asked regarding jurisdictions where the fair dealing exception is applicable: whether given its specificity, the fair dealing exception will offer the flexibility necessary to sufficiently support the permissible use of copyright-protected educational materials online. The fair dealing exception applies in countries such as Nigeria, Ghana, South Africa, the UK and Canada. Interpretations of the scope of the fair dealing exceptions differ across jurisdictions.

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Two days ago (15 March), South Africa’s President Cyril Ramaphosa addressed the nation on the measures that have been put in place to deal with the coronavirus outbreak in South Africa. Universities in South Africa have also started to implement internal measures to help with the fight against the continued spread of the coronavirus. One of these measures is to move from face-to-face teaching/learning to online learning. This SpecialKat’s institution, University of Cape Town has taken the decision to break for Term 1 (effective 16 March 2020) roughly a week earlier than planned and will announce new date for Term 2 once it has “had an opportunity to assess the prevailing and quickly changing circumstances”. The broader plans for online learning will also be communicated soon.

The school closure and plans to migrate to online learning are not limited to the University of Cape Town: other schools across South Africa are moving in the same direction in response to the coronavirus outbreak.

For present purposes (i.e. copyright and online learning), will the fair dealing exception in South Africa be helpful, problematic or irrelevant to the cause? 

The fair dealing exception in South Africa

Section 12 of South Africa’s Copyright Act provides that:

(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 (underlining mine)

“Fair dealing” is not defined under the Act. The fair dealing provision is similar to the fair dealing exception in other jurisdictions such as Nigeria (Second Schedule to the Copyright Act) and the UK. However, unlike Nigeria’s fair dealing exception that applies to all categories of protected works, the South African fair dealing provision applies only to literary and musical works.

The fair dealing exceptions contemplated by s 12(1) of the Copyright Act have not been subject of judicial interpretation until the case of Moneyweb (Pty) Limited v Media 24 Limited and Another decided in 2016. In that case, the High Court (Gauteng Local Division) held as follows (paraphrased):

(i) Fair dealing exception only arises for consideration when there has been substantial reproduction [paragraph 111];

(ii) The relevant facts are those existing at the time of dealing [para 112]

The court’s consideration of fairness was specifically made in relation to section 12(1)(c)(i) on news reporting but the underlying factor was context of the dealing. See para 113.

Comments
Corollary to the foregoing, one may safely conclude that even fair dealing with all its specificity is not cast in stone. That said, this SpecialKat is of the opinion that the circumstances of the coronavirus outbreak support a broad judicial interpretation of the fair dealing exception in favour of using protected material in online learning.

Already, the South African government has labelled the coronavirus a "disaster” within the meaning of Disaster Management Act 2002. Such declaration gives the government wide powers to regulate movement of people and goods without having to deal with legislative bureaucracy and the like. By extension, it is quite possible that the courts will lean favourably on the side of interpreting the fair dealing exception to support use of copyright-protected materials in a manner that supports effective online learning. For example, “research” may be construed broadly to accommodate online learning activities and dealing with protected materials in the circumstances of the coronavirus outbreak interpreted to provide a strong context for fairness. 

Readers may also recall that in the wake of the HIV epidemic, South Africa’s Competition Commission in Hazel Tau and others v GlaxoSmithKline South Africa and Boehringer Ingelheim accepted the argument that the respondents’ activities in relation to the drugs for treatment of HIV constituted an abuse of dominance in the form of excessive pricing and other exclusionary conduct. The finding of the Competition Commission and its decision to refer the matter to the Competition Tribunal was said to have led the parties to settle the matter and the respondents agreeing to provide generic manufacturers with licenses to their patents.

Even if the fair dealing exception does not apply, Section 12(4) of the Act, which provides that “the copyright in a literary or musical work shall not be infringed by using such work, to the extent justified by the purpose, by way of illustration in any publication, broadcast or sound or visual record for teaching: Provided that such use shall be compatible with fair practice and that the source shall be mentioned, as well as the name of the author if it appears on the work” may be helpful. 

Also, open educational resources and public domain materials are helpful to the cause of online learning and may be lawfully used to support online teaching and learning in these (and regular) times. See free IP educational materials shared by Kat Eleonora Rosati, here.

For discussion of relevant educational copyright exceptions in South Africa, see here.