From fair dealing to fair use : Striking a balance between competing interests in South African copyright law

Abstract

The study has its motivation from the contentious South African Copyright Amendment Bill [B13-2017] that has been before Parliament for many years, and more recently, been passed by the National Council of Provinces and awaiting President’s assent. The Amendment Bill proposes, inter alia, a shift from the exception approach of ‘fair dealing’ to that of ‘fair use’ and this forms the basis of the study. Since copyright exceptions and limitations (including fair dealing and fair use) are a way in which competing interests in copyright law are sought to be harmonised, the study is concerned with whether such harmony would ensue notwithstanding the proposed shift of doctrines in South Africa. In founding its argument and addressing the core issue, the dissertation explores the idea of competing interests and its nexus with the exceptions and limitations in copyright law. Further, it engages in a comparative study to juxtapose the fair dealing and fair use provisions as employed in South Africa and other countries like the United States and Singapore. After conducting such comparative study, the dissertation analyses whether the proposed fair use is suitable for South Africa through a discussion of the international obligations, important socio-economic considerations and fundamental legal principles such as the rule of law that underpin South Africa.

In conformity with its discussions, the study deems fair use, as proposed, to be unsuitable for the country. However, it does not suggest that the current fair dealing is adequate. In fact, it reveals the gaps in fair dealing through discussing the findings of the famous case of Moneyweb (Pty) Ltd v Media 24 Ltd and another [2016] 3 All SA 193 (GJ). The study shows more interest in the principles that the South African legislator followed (or ought to follow) in reforming the copyright exceptions. It establishes and analyses five principles or factors that the legislator should use as guidance when revising the exception provisions. Ultimately, it submits that a revision of the fair dealing clause may be more practicable than a reform to fair use.