Fair Use in South Africa

Guest blog post by Jonathan Band, policybandwidth and counsel to the Library Copyright Alliance

The United States Trade Representative (USTR) is reviewing the eligibility of South Africa (SA) for trade preferences because the SA Parliament has passed a Copyright Amendment Bill (CAB) that the International Intellectual Property Alliance (IIPA) claims will result in inadequate and ineffective protection of copyright in SA. The IIPA consists of US-based copyright associations such as the Motion Picture Association, the Recording Industry Association of America, and the Association of American Publishers. While IIPA raises numerous objections to the CAB, the focus of IIPA’s opposition is that the CAB adopts a US-style fair use right.

IIPA generally urges USTR to pressure foreign governments to adopt US copyright principles. IIPA, however, has consistently opposed the export of fair use. To be sure, IIPA members routinely rely on fair use when sued for infringement in the United States. The IIPA petition, therefore, sets forth justifications for opposing SA’s adoption of a central feature of US copyright law. These justifications have no merit.

First, IIPA states that the CAB creates a “hybrid” system combining a flexible fair use provision with specific exceptions. But that is exactly what US law does, as well as every other country that has fair use. For example, the US Copyright Act combines fair use with specific exceptions for libraries and archives (section 108); educational institutions, religious organizations, and small restaurants (section 110); users of computer programs (section 117); and authorized entities that provide services for people with print disabilities (sections 121 and 121A).

Second, IIPA complains that SA lacks the legal precedent—established over decades—that has served to define, refine, and qualify that doctrine in the United States. Under this reasoning, no country could ever adopt fair use.  Moreover, via the internet, judges in SA would have easy access to hundreds of fair use decisions in the United States, as well as the opinions by judges in the other jurisdictions that have fair use exceptions. Indeed, SA judges can rely upon online tools such as the US Copyright Office’s Fair Use Index, which contains a searchable database of summaries of hundreds of fair use decisions. The Copyright Office explains, “The goal of the Index is to make the principles and application of fair use more accessible and understandable to the public,” thereby directly addressing IIPA’s concerns. (In the introduction to its Fair Use Index, the Copyright Office notes, “Fair use is a longstanding and vital aspect of American copyright law.”)

Third, IIPA argues that SA does not have statutory damages, which copyright owners in the United States rely upon to deter and remedy infringement. The link between exceptions and remedies is unclear. Regardless, SA does allow the award of “additional damages” in cases of flagrant infringement. Additionally, SA follows the “English rule” for the award of attorney’s fees. Under the English rule, the prevailing party automatically recovers attorney’s fees. The English rule strongly discourages a defendant from pursuing a defense unless it has a high degree of confidence it would prevail. This would insure that defendants would not assert fair use frivolously.

On January 30, 2020, USTR held a hearing on IIPA’s petition, at which the Library Copyright Alliance (LCA), of which ARL is a member, testified in favor of maintaining trade preferences for SA. Additionally, LCA is submitting a post-hearing brief at the end of this week. The withholding of trade preferences could harm the SA economy by disrupting SA exports to the United States.

Other countries in Africa, and elsewhere in the developing world, are looking to see how this story ends. The CAB could become a model for progressive copyright legislation; or it could be a cautionary tale of what happens when a developing country tries to “step out of line.”