Abstract:
As a pervasive feature of modern society, the adaptation right in the context of
infringement and fair dealing has frequently been a subject of heated debate for several
years. However, the current Copyright Act 98 of 1978 does not adequately address either
aspect. 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 in the
context of the various forms of adaptation set out in the Copyright Act (ie arrangement,
transcription, translation and transformation) remain largely undefined, leaving those
attempting to create a work of adaptation or resolve a dispute over one in a state of
considerable uncertainty. Consequently, there are numerous gaps in South Africa’s legal
system concerning adaptations and their role in legal proceedings. This is exacerbated
by the absence of case law meant to provide clarification. Additionally, the exceptions
and restrictions associated with the adaptation right are extremely limited. Blind SA v
Minister of Trade, Industry, and Competition and the almost decade-long debate about
the Copyright Amendment Bill indicate a need for reform in South Africa’s legal system
concerning adaptations and their role in legal proceedings.
