The Copyright Amendment Bill seems destined to become law. Among other problems, the bill confusingly attempts to introduce a new legal doctrine – “fair use” – into South African law, whilst keeping the old one – “fair dealing”. This absurdity might have the result that copyright protections are eliminated entirely. While one might agree that the authoritarian enforcement of copyright must be toned down, it is nevertheless an affront to the Rule of Law for a bill of this sub-par quality, betraying a fundamental confusion and lack of understanding on the part of its drafters. That it made it this far into the legislative process is an injustice.
The justifiability of copyright, and intellectual property more broadly, is subject to widespread philosophical, jurisprudential, and economic debate. Do property rights truly vest in the expressions of ideas, when the purpose of property rights has always been to regulate resource scarcity? It is a debate deserving of a satisfactory conclusion. But the Copyright Amendment Bill confuses the existing understanding of copyright, in light of the poor draftsmanship and consideration that went into it. This is not the way to resolve this debate.
The amendment bill is problematic from both a technical and conceptual perspective. It is evident that the drafters were not familiar with South African copyright law, nor with the very legislation – the Copyright Act – they were amending. For instance, the bill contains various references to concepts introduced in the 2013 Intellectual Property Laws Amendment Act, which itself purports to amend the Copyright Act. But the 2013 Act has not yet been signed into law, meaning if the Copyright Amendment Bill is adopted before the 2013 Act, there will be meaningless provisions scattered throughout the law. This makes a mockery of the legislative enterprise, and the Rule of Law imperative that all legal content be regarded as meaningful and operational.
Conceptually, the drafters of the bill erred by introducing the concept of “fair use” into South African copyright law whilst at the same time attempting to keep the existing “fair dealing” doctrine. Copyright experts Sadulla Karjiker and Owen Dean argue that government must choose one of these systems. Having them side-by-side would be disastrous for the protection of intellectual property.
Up to now, the 1978 Copyright Act dealt with fair dealing. In fair dealing systems, like ours, the legislation spells out the circumstances under which someone may use copyrighted works without permission. For example, using copyrighted works for private study or for review purposes does not amount to an infringement of copyright. Crucially, this conduct must also be fair or reasonable. Thus, if one copies the entirety of a copyrighted book when one only needed to study one chapter of it, it would not be reasonable, and thus one would not qualify for the fair dealing exemption.
Fair use is more flexible than fair dealing and, effectively, means that it must be the considered view of the judge, in light of all the surrounding facts of the case, that the unauthorised use of the copyrighted content was fair. So there is no longer a closed list of circumstances under which one may use copyrighted content – one simply needs to satisfy the requirement of fairness.
In its text, the Copyright Amendment Bill apparently seeks to transition South Africa out of fair dealing into the American model of fair use by substituting every appearance of the former with the latter.
The conceptual difference between fair dealing and fair use is slight, but has important ramifications. Up to now, under South African law, copyright holders knew that there was a closed list of purposes for which others may reasonably use their works without permission. There is legal certainty, which is the ultimate purpose of the legislative enterprise. But if the amendment bill is signed into law, this certainty would disappear. People would be able to use copyrighted works for any purpose whatsoever, as long as a court deems that use to be fair.
Fair use has long been part of America’s and other legal systems, so this is not necessarily a novel jurisprudential concept that was feverishly invented in the minds of our permanently confused parliamentarians. The problem is that South African law is not yet equipped to deal with a fair use regime. In other words, our judges, legal community, and copyright holders, are not familiar with it. Now that South Africa’s economy is shrinking and virtually nobody, least of all government, knows what the future holds, it is assuredly not an appropriate time to be experimenting with intellectual property law. We need to be stimulating and incentivising innovation, not creating uncertainty around it.
Despite the bill appearing to transition South Africa completely out of fair dealing, it also codifies a list of certain circumstances under which one would not be guilty of copyright infringement. It attempts to retain a vestige of fair dealing in clause 12B while simultaneously introducing fair use. But it does this without using the term “fair dealing”. And by not using the term, and exempting works from copyright under certain circumstances, fairness or reasonableness has been removed as a criterion. Under clause 12B, a court may therefore only inquire into whether the use is textually allowed, and not whether the usage itself was reasonable.
In its ill-considered creativity, in other words, government has introduced fair use into an environment where it is unknown and unpredictable, and taken the “fair” out of fair dealing. The consequences could be dire. If this article confused you, that’s because the legislation is deeply confusing.
Either intellectual property rights exist, or they do not. If we decide that they do not, the copyright, trademark, and patent regime must be entirely dismantled and not replaced. With the Copyright Amendment Bill, however, government has tried to abolish intellectual property rights in an underhanded way. It has given this abolition the veneer of legality, whilst the bill itself offends the Rule of Law. The copyright debate must continue apace, but without ignorant and opportunistic political forces confusing the issue.