Long Walk to Copyright Reform (Pt 3): What does/should South Africa want with its copyright exceptions?

The window for stakeholders and interested parties to make written submissions in response to the invitation of the Portfolio Committee on Trade and Industry in South Africa regarding certain clauses of the Copyright Amendment Bill (CAB) closed earlier this month on 9 July 2021. As previously indicated here, South Africa’s President had returned the CAB to Parliament alleging inter alia reservations on the constitutionality of clauses 13 and 20 of the Bill. As part of the process to address the President’s reservations, the Portfolio Committee on Trade and Industry had invited written submissions.

The invitation for written submission was strictly limited to the President’s reservations on:

(i) the alignment of the CAB (and the Performers’ Protection Amendment Bill (PPAB) with the obligations set out in international treaties, including the WIPO Internet Treaties, and the Marrakesh Treaty to Facilitate Access to Published Works for Person Who Are Blind, Visually Impaired, or Otherwise Print Disabled;

(ii) The constitutionality of certain copyright exceptions

The call for submissions was also established to rectify and address the Presidents’ reservations that various sections of the Bill, including section 12A (fair use provision), was not put out for public comment before the final version of the Bill was published.

Some of the written submissions

Conceivably, the Committee received written submissions from all kinds of stakeholders – author groups, academia and academic networks, user groups (also here), think tanks, businesses, individuals, etc. However, for purposes of this post, this Kat is particularly interested in the comments made at a workshop hosted by the Academy of Science of South Africa (ASSAf) on 29 June 2021. The workshop attracted scholars and participants from diverse stakeholder groups. ASSAf has compiled these comments and other written comments it received and submitted same to the Portfolio Committee on Trade and Industry.

One of the major sticking points from these comments and which also appears in other comments and submissions shared by various stakeholder groups is the fair dealing v fair use choice.

There is consensus on all sides that South Africa’s current position on the fair dealing ‘line’ is problematic. The point of debate is what to do about it. Should South Africa stay on the fair dealing line but move to a different point on that line? Should it leave the fair dealing line entirely and get on the fair use line? The current draft of the Copyright Amendment Bill has taken the later approach.

For those in favour of retaining that line/approach, the copyright exceptions complies with the three-step test, which is concerned with the 'legitimate interests' of the copyright owner, not those of third parties. For them, South African courts under the fair dealing regime have had to deploy a process of reasoning to determine if a particular use falls within the enumerated activities. Within the proposed fair use regime, this process of reasoning would continue albeit based on the set of factors now statutorily indicated in the Bill.

The fair use proponents also argue that the only departure that the CAB made from the fair dealing line of the current Copyright Act is that the fair use provision in Section 12A of the CAB uses the words “such as,” when enumerating the purposes for which a work may be used (as opposed to just providing a list of permitted uses). In their view, this allows the law sufficient room to develop naturally without the constant need for the legislator to intervene. For them, this is helpful because the current fair dealing arrangement is limited and does not address the digital space, evolving technologies, or the 4IR.

For those against crossing to the fair use line, the key argument is that fair use approach is too open-ended. It entails the empowerment of the court hearing a copyright infringement matter to decide whether, on the facts of the particular case, it is fair to condone a defendant’s infringing conduct. As a result, the parties to a dispute and the public at large, will only know the answer to this question in each specific case once the case has been taken through to its final conclusion and all appeals have been exhausted. They argue that this process could take several years from the commencement of the dispute. [But is that not how it works for all disputes including those involving fair dealing?]

The fair use opponents further argue that fair use does not meet the three-step test: it adversely affects the interests of authors because the incentive provided to authors to produce original works is taken away and the public interest suffers in the long run due to a decline in the production of works, which impacts on the development of the arts and sciences. Section 12B(1)(i) of the CAB is proffered as an example. It allows the making of a personal copy by an individual of entire works for non-commercial use without any qualification that the activity must be fair. For the fair use opponents, allowing unauthorised copying to this extent would destroy the market for most books.

Breaking away from fair dealing: what do we want?

If we looked at the debate critically and holistically, it would be safe to conclude that the question isn’t really fair dealing v fair use or at least, it isn’t the first and urgent question. Instead the question is: what does South Africa want its copyright exceptions to do/achieve for the country? Put differently, on what goal or principle does South Africa wish to anchor its copyright exceptions?

To proffer an example: in family law particularly in custody issues, the key principle is that the best interests of the child would be paramount. So whether any parent is indigent, immoral or amoral for instance, would not ordinarily preclude such parent from being awarded custody so long as it is in the child’s best interests. Extending this to the copyright exception list, the question for the legislator should be what principle(s) are we to keep at the forefront in deciding on issues like:

(a) whether to have a closed list or open-ended list or a non-exhaustive list;
(b) if we are going for a closed list, what kind of uses to have on such list? Or, how the items on the list are to be determined? [Basically, how do we decide that the list must have only research or private study, criticism or review, and reporting current events? Or that the works be limited to literary and musical works only?]
c) whether exceptions would focus on authors/copyright owners or on copyright users while adhering to the three-step test?

For the courts, such principle(s) would assist in deciding the interpretation approach to take in determining the scope of each listed exceptions. Even with an open-ended list, the courts would need such principle(s) especially in deciding cases involving uses that fall under “such as” or “including” or uses not explicitly enumerated in a “hybrid” fair use. By extension and in a hybrid fair use regime, it is the listed uses that contextualize the non-listed uses and aid their acceptance or rejection within that list per the ejudem generis rule of interpretation of statutes.

* Public hearings on the submissions made in respect of the CAB will take place virtually on 4th and 5th August, 2021. The committee will hear oral presentations only from those individuals and organisations who had previously requested an opportunity to do so in their written submissions. It should be worth a listen.

** Some thoughts on the issue of what principle(s) should anchor South Africa’s copyright exceptions, in a follow up post. Stay tuned…