Submission to South African Parliament\u27s Portfolio Committee on Trade and Industry - Re: Copyright Amendment Bill [B13B - 2017]

This submission is on behalf of the Global Expert Network on Copyright User Rights. The Network is an association of over 100 copyright academics from over 30 countries who conduct research and offer technical assistance to governments and stakeholders on the reform of copyright limitations and exceptions to promote the public interest. Professor Sean Flynn, Counsel of Record, is a former Law Clerk for the late Chief Justice Arthur Chaskalson, is currently a Senior Research Fellow at the University of Cape Town IP Unit, and has been conducting research and leading academic projects in South Africa for over two decades. Members of the Global Expert Network on Copyright User Rights that were consulted on this submission include: Patricia Aufderheide, American University Carys Craig, Osgoode Hall Law School, York University, Canada Niva Elkin Koren, Tel-Aviv University Christophe Geiger, University of Strasbourg (France) Lucie Guibault, Schulich School of Law, Dalhousie University, Canada Peter Jaszi, American University Washington College of Law Ariel Katz, University of Toronto Thomas Margoni, Faculty of Law, KU Leuven João Pedro Quintais, Institute for Information Law, University of Amsterdam Allan Rocha, Federal University of Rio De Janeiro Matthew Sag, Loyola University of Chicago Pam Samuelson, Berkeley Law School Arul George Scaria, National Law University, Delhi Tobias Schonwetter, University of Cape Town IP Unit Martin Senftleben, Institute for Information Law, University of Amsterdam Peter Yu, Texas A&M School of Law REQUEST TO PRESENT AT PUBLIC HEARING We request to be represented by our counsel of record, Professor Sean Flynn, at the public hearings on the Bill scheduled on Wednesday, 4 August, and Thursday, 5 August 2021. SUMMARY OF OUR COMMENTS We provide this comment on Clause 13, section 12A of the Copyright Amendment Bill [B13B-2017]. Section 12A is an open general exception for “fair use” of copyrighted works. This provision is largely an updating of South Africa’s current general exception for “fair dealing” with a copyrighted work. The primary improvements of Section 12A over the current fair dealing exception are (1) to open the list purposes to which the exception can apply by virtue of including the words “such as” before the list of authorized purposes, and (2) providing an explicit balancing test to determine whether a particular use is fair. Benefits of the hybrid approach In our view, the proposed fair use provision combined with the specific list of exceptions provides South Africa the “best of both worlds” combining openness and predictability. The open fair use exception makes the exceptions future-proof. It permits the law to adapt to new uses, technologies, and purposes which may not be anticipated in the specific exceptions. The list of specific exceptions in Section 12B provides a higher degree of predictability for the set of uses long authorized in South Africa copyright law. Compliance with international law This hybrid approach to exceptions is fully compliant with international law. The so-called “three step” test does not prohibit open general exceptions that operate through case by case application of a specifically delineated balancing test. At least 11 countries have similar provisions in their law and none have been challenged. We include below further explanations of each of these points