(by Linda Daniels – first published for Intellectual Property Watch under CC BY NC SA licence)
“Fair use” was at the heart of discussions between intellectual property stakeholders at a recent workshop called to discuss the revised draft copyright amendment bill of South Africa. The one-day workshop, held in Cape Town on 6 December was the first of two IP sector workshops that brought together academics, activists and IP practitioners to discuss the merits and demerits of the copyright amendment bill and its anticipated revisions. The second one-day workshop was held in Johannesburg the same week on the 8th of December. The draft copyright amendment bill, was published in the government gazette by the Department of Trade and Industry (DTi) in July 2015. This opened a public submissions process into the bill which ran until 16 September 2015. During this period, government called a one day conference in Johannesburg to further inform the refinement process of the bill (IPW, Africa, 28 August 2016). However, the initial flurry of excitement around the bill’s first public appearance has been tempered by uncertainty over when the official revised version will be released. DTi spokesperson Sidwell Medupe told Intellectual Property Watch in December, “We are working on it with state law advisors (certification). Early next year this will be complete and will be introduced formally.” The revised bill has not been made public yet, however Intellectual Property Watch has seen a draft version.
According to one South African academic at the meeting. The current draft bill does not contain a US-style fair use right because – although it applies a similar flexible balancing test through a general clause – it is not open to any potential purpose. This may inhibit the clause from being applied to some purposes not included in the bill, for example to the millions of copies made each day by commercial internet search engines. Such copies are not for “research,” “education” or other specific purposes protected in the existing bill. Broadly defined, “fair use” refers to rights within copyright law to use protected works without license or permission of the rights holder to serve various public interests. Expanding such user rights in South Africa in a core purpose of the revision and the workshop explored the many ways in which users would benefit from the bill’s terms. These include expanding rights to use copyrighted works for education, libraries and to provide access for people with disabilities. The workshop also explored the extent to which the bill might implement the more specific “fair use” right that exists in the U.S., Israel, Singapore, and some other countries. Here, according to Professor Sean Flynn of American University Washington College of Law, “fair use refers to a general exception in copyright law that is open to use for any potential purpose and is applied through a flexible balancing test that considers the rights and interests of the author as well as that of the user and public at large.” It is less clear whether the South African bill will include a fair use provision that is general, open and flexible as is the US standard.
Dr. Tobias Schönwetter, director of the Intellectual Property Law and Policy Unit at the University of Cape Town (UCT) and the regional coordinator for Africa Creative Commons, opened the Cape Town workshop. He reminded workshop participants that the discussion would be limited to the published draft copyright amendment bill and what could be anticipated in the revised bill given that it has not yet been released. This latest workshop was organised by the IP Law and Policy Unit of UCT and follows on from an event entitled, “The Internet Rights, Cultural Development and Balancing Features in South African Copyright Reform conference” which was held in August 2015 and hosted by the same organisers.