THE COPYRIGHT AMENDMENT BILL: WELCOME FAIR USE

INTRODUCTION

The Copyright Act Amendment Bill (hereinafter referred to as "The Amendment Bill") has seen some trying times in its journey to being now approved and currently waiting acceptance and assent from the President of the Republic of South Africa. The approval by the Houses of parliament of this bill took place on the 29th of February 2024 . The passing of the bill has been met with mixed reactions within the creative industry landscape. The scale tipping more on the side of opposition to the bill due its potential hampering of creativity and creation of works we engage with every day. In my opinion the bill spells the beginning of an idea's generation utopia.

This article will delve into the why of why the bill works. It will get into the background of the amendment bill. Touch on the fair use principle which is being introduced in South Africa's copyright law through the amendment bill as fair use seems to be the most contentious issue that causes opposition to the CAB. The article further provides the latest developments and the way forward as it pertains to the coming into being of the bill. The greatest currency of our time is Information. And we have more access to it today than ever before. As a society we just need to be more inclusive in enabling means for information to be accessed by all. I believe that what this bill does. 

BACKGROUND OF THE AMENDMENT BILL:

The amendment of the copyright began in March 2017 wherein the bill was first introduced in the National Assembly. Two years later after its introduction in the National Assembly the amendment bill was approved by both houses of Parliament (National Assembly and National Council of Provinces) and was sent to the President of the country for assent.

A year passed and the president had still not made a decision on whether the proposed amendments are to be enacted in law. Stakeholders and interested parties stepped in and launched litigation for the purpose of prompting the president to assent to the Copyright Amendment Bill. The president was jolted into action and was required to look into the bill and decide on its way forward, or should I say, way backwards. Exercising his powers as it relates to the law-making process, the president rejected the amendments and sent the bill back to parliament, citing concerns about the unconstitutionality of the amendment bill.

Since the bill was sent back to parliament in June 2020, it has been subject to numerous deliberations by parliament over and over again and has been put under extensive public participation.

In 2022, Blind SA together with Section24 approached the constitutional court and challenged the constitutionality of the Copyright act. I suspect BlindSA took this step due to the lack of urgency and delays in which the amendment bill was stalled by, so to put pressure on parliament, BlindSA launched this constitutional challenge to the copyright act. The Constitutional Court found the Copyright Act to be unconstitutional to the extent that it discriminated against people with visual and print impairment by restricting them from accessing literary works in formats they can engage with, such as braille and large prints. The court ordered a 24 month suspension of the unconstitutional declaration and ordered that parliament rectify the unconstitutionality before the end of September 2024.

Fast forward two years later after that constitutional court judgment and both house of parliament, on the 29th of February 2024, have approved the amendment bill and sent it to the president. The amendment bill is currently awaiting assent from the president and then finally enactment as law of the land.

While we await the president's decision on the copyright amendment bill and whether it will be part of our copyright law, various stakeholders, academics and artist have voiced their concerns about the bill and its negative impact on the artist livelihood. The introduction of Fair use by the amendment seems to have raised eyebrows as that is one of the contentions expressed in opposition to the enactment of the amendment into law.

FAIR USE:

Now one of the key features of the amendment bills is the allowing of fair use on copyrighted work. What is Fair use?

Fair Use in brief and simple terms is a legal doctrine that provides for the use of copyright protected creations in certain circumstances without the permission of the copyright holder. It is an exception to the general rule that copyrighted material may not be used without the authorization from the holder of the right.

The circumstances which permit the fair use of copyright protected material as outlined in the bill include:

• Reporting current news

• When providing criticism/review of that copyrighted material

• For purposes aligned with Research, private study and personal use

• Use in relation to scholarship applications, teaching and education

• When the use is for purposes of preservation of and access to the collection of libraries, archives and museums

• When use of copyright protected work is for providing a commentary, illustration, parody, satire, caricature, cartoon tribute, homage or pastiche

• When its use is to ensure proper performance of public administration

According to the amendment bill, the above acts/uses of copyrighted material will be permitted without the prior authorization of the copyright holder. I strongly suspect that the worry in which various organization have against the introduction of fair use doctrine has to do with the flexibility in which the bill has granted use of copyrighted works without permission from relevant party.

It essential to understand that in raising the legal doctrine of fair use against an accusation of theft of copyright protected works, the bill makes provision by providing and outlining factors which show that use is indeed fair use.

These factors include:

• Looking at the nature of copyrighted work

• Considering the amount and sustainability of the part of work affected by the unauthorized used

• Taking regard to the purpose and character of the use. Whether the use serves the purpose from that of the copyrighted work. And whether the purpose and character of the use is of a commercial nature or whether its for non-profit research, library or educational purposes

• Considering the effects of the unauthorized use on the potential market for the copyright protected work.

The purpose of free use is towards the evolution of the species. With more people having access to information and understanding means a freer society. As the acclaimed philosopher Baruch Spinoza once said "Understanding is freedom". A society with more understanding of its reality is a society more free. We gain a better perspective of our world through access and exchange of information and knowledge.

From where I am standing, the printing industry has not much to worry about when it comes to the introduction of the fair use legal doctrine into our copyright law. Instead the introduction of this legal doctrine spells opportunity for the member companies of Printing SA and the overall printing industry.

Fair use as introduced by the amendment bill entails the increase in demand for literary and visual work in formats which are accessible in different formats for the purpose of inclusion of all persons, in particular, person with visual and print impairment. Enactment of this bill presents various opportunities to ensure the growth and sustainability of the printing industry and expansion to diverse markets and peoples.

LATEST DEVELOPMENTS ON THE COPYRIGHT AMENDMENT BILL

The stage in which the copyright amendment bill is currently in has finally reached the phase wherein the president could either assent to it or reject it. The houses of parliament have on the 29th of February 2024, approved and passed the bill. Its currently with the president of the republic of South Africa for assent. Now, should the president assent to this bill, then the amendments to the copyright act will be enacted into law and binding on society. Should the president not be satisfied with the bill and it passing constitutional muster, commentators believe that the president will take the bill to the constitutional court in order to check its constitutionality. Either way, the bill has to be passed and enacted before the end of September 2024.

We currently await the presidents decisions.

Update: The president assented to the bill. Welcome Fair Use