Fair Use in South Africa; and the road not taken in Irish and Australian copyright reforms

Two roads divergedCopyright reform is under consideration in many jurisdictions, including Australia, Canada, New Zealand, Singapore, South Africa, and the United Kingdom. It has just been completed in the EU. In Ireland, the long-awaited Copyright and Other Intellectual Property Law Provisions Act 2019 (here and here) was signed by the President on 26 June 2019 last; in an unexplained delay, it took until 26 November 2019 for the Minister for Business, Enterprise and Innovation, Heather Humphries, to specify 2 December 2019 as the day on which most of the Act – eventually – came into force. In a future post, I will blog about the important changes made by the Act; in this post, I want to mention a road not taken. In May 2011, the Government established a Copyright Review Committee (CRC) to identify any areas of Irish copyright legislation that might create barriers to innovation and to make recommendations to resolve any problems identified.

In particular, one of the terms of reference required the CRC to “examine the US style ‘fair use’ doctrine to see if it would be appropriate in an Irish/EU context”. It was a controversial topic, with powerful views expressed both for and against the exception. After an extensive consultation process, the CRC report Modernising Copyright was published in October 2013. Amongst many recommendations, the Report proposed a tightly-drafted, circumspect, and balanced exception for fair use, which differed substantially from the US doctrine. The proposal was based on three paramount considerations: that the statutory text should take full account of the legitimate concerns raised by the doctrine’s critics; that it should be tied as closely as possible to, and informed as much as possible by, the existing exceptions; and that it should be based on, and take advantage of, the experience of other jurisdictions. As a consequence, the Report recommended that the existing copyright exceptions be regarded as examples of fair use, that they be exhausted before analysis reaches the question of fair use, and that the question of whether a use is fair on any given set of facts should turn on the application of any or some or all of up to eight separate factors:

    (a) the extent to which the use in question is analogically similar or related to the other acts permitted by this Part,
    (b) the purpose and character of the use in question, including in particular whether

      (i) it is incidental, non-commercial, non-consumptive, personal or transformative in nature, or
      (ii) if the use were not a fair use within the meaning of the section, it would otherwise have constituted a secondary infringement of copyright,

    (c) the nature of the work, including in particular whether there is a public benefit or interest in its dissemination through the use in question,
    (d) the amount and substantiality of the portion used, quantitatively and qualitatively, in relation to the work as a whole,
    (e) the impact of the use upon the normal commercial exploitation of the work, having regard to matters such as its age, value and potential market,
    (f) the possibility of obtaining the work, or sufficient rights therein, within a reasonable time at an ordinary commercial price, such that the use in question is not necessary in all the circumstances of the case,
    (g) whether the legitimate interests of the owner of the rights in the work are unreasonably prejudiced by the use in question, and
    (h) whether the use in question is accompanied by a sufficient acknowledgement, unless to do so would be unreasonable or inappropriate or impossible for reasons of practicality or otherwise.

To emphasise the point that this is quite a long way from a “US-style fair use” provision, in December 2015, a Private Member’s Bill introduced into the Seanad [the Senate; the Upper House] to implement all of the CRC’s recommendations described it as a reasonable dealing exception. The argument was that reasonableness is a familiar legal standard; and dealing is a familiar copyright standard; so, together, they better captured the essence of the exception described above. Indeed, the renaming might well have brought it into the bailiwick of the existing fair dealing exceptions. For example, in 2004, Singapore introduced a general open-ended exception that broadly resembled the US fair use doctrine, but did so under the rubric of fair dealing (indeed, current proposals (pdf) would bring it even closer to the US position). In any event, the Government opposed the Bill, and it had not received a second reading before it lapsed when the Dáil and Seanad were dissolved the following month.

At the same time as the CRC was considering copyright reform in Ireland, the Australian Law Reform Commission (ALRC) was also working on the same topic. It published its Final Report on Copyright and the Digital Economy in February 2014. It too contains extensive recommendations for reform, but its recommendation is for the introduction of a fair use exception into Australian copyright law. They argued that fair use

    – is flexible and technology-neutral;
    – promotes public interest and transformative uses;
    – assists innovation;
    – better aligns with reasonable consumer expectations;
    – helps protect rights holders’ markets;
    – is sufficiently certain and predictable; and
    – is compatible with moral rights and international law.

Subsequently, the Australian Productivity Commission’s Final Report into Intellectual Property Arrangements, published in December 2016, similarly supported the introduction of a principles–based fair use exception; and the Government’s response (pdf) accepted that the ALRC’s final recommendations regarding a fair use exception should be implemented. Nevertheless, in both Ireland and Australia, these recommendations ultimately fell upon deaf executive and legislative ears, and neither has been implemented.

By contrast, in South Africa, the Copyright Amendment Bill (pdf of the version sent to the President for assent [see here for earlier versions of the Bill]) contains an explicit (if, unsurprisingly, controversial) fair use exception, closely modelled on the US experience, and much more in keeping with the Australian proposals than the Irish ones. As part of a controversial process conceived as decolonising copyright, the key South African move, rejected in Ireland, is to open its existing closed list of permitted fair dealing purposes to provide for any analogous use that is fair. This, and the other exceptions provided in the Bill, are generally framed to be open to all works, uses, and users, and could help unlock the doors of education and culture in South Africa. For these reasons, it has been widely welcomed and supported by many international and local organisations, institutions, teacher unions, NGOs, various creators, and libraries and archives. On the other hand, stakeholders from the publishing, music, filmmaking and other creative sectors, have predictably and consistently opposed the Bill. Hence, though it went to the President for signature on 28 March 2019, he has not signed it because its opponents have successfully raised constitutional questions (which have proven to be spurious in the Irish constitutional context). According to section 84(2) of the Constitution, the President is faced with a number of choices: he can sign the Bill into law as it stands, refer it back to the legislature for its consideration, and refer it to the Constitutional Court for its consideration. He has yet to decide which route to take. Update (16 June 2020 (pdf)): he sent the Bill back to the legislature because of – unfounded – reservations about its constitutionality.

Because research shows that providing such open exceptions correlates with information technology industry growth and with increased production of works of knowledge creation, Flynn et al argue that South Africa should enact the Bill, and that its fair use right should be a model for reforms elsewhere in the world. Certainly, there is a great deal of scope for copyright regimes worldwide to adopt and adapt fair use transplants, either in US terms, or on foot of international norms. It remains to be seen whether any of the other current reform processes (in particular, New Zealand) will follow South Africa’s lead. Meanwhile, it is a great pity that neither Australia nor Ireland took that road. It will make all the difference, and not in a good way.