The scope of the adaptation right in South Africa, foreign and international copyright regimes

Abstract

As a pervasive feature in modern society, the adaptation right within the context of infringement and fair dealing has been a frequent subject of heated debate for several years. The power disparity between copyright owners and users makes it difficult for the user to determine when it is appropriate to pay for permission and when to use the work without permission, resulting in numerous legal debates over what is considered lawful or permissible use. Moreover, the complexities of copyright law and its application within the context of the various forms of adaptation set out in the Copyright Act (i.e., an arrangement, transcription, translation, transformation) remain primarily undefined, leaving those attempting to create a work of adaptation or resolve a dispute over one in a state of considerable ambiguity. This is exacerbated by the absence of case law meant to provide clarifications. The findings in Blind SA v Minister of Trade, Industry, and Competition, and the almost decade-long debate of the Copyright Amendment Bill, indicate numerous gaps in South Africa's legal system concerning adaptations and their role in legal proceedings. Accordingly, a need to revise existing copyright laws and the intended forthcoming changes by way of the Copyright Amendment Bill is justifiable to protect the rights of creators while facilitating the equitable use of works in the digital age. Through an in-depth analysis of the available evidence (i.e., existing South African legislation and case law, foreign legislation and case law, and the Copyright Amendment Bill B13-17), this dissertation seeks to determine which approaches and forms of assessment are best suited for the South African framework in adaptation cases and, based on this discovery, to make recommendations for their adoption.