South Africa's Proposed Fair Use Right In new Bill Is Surprisingly Good -

[Wilhelm]

Too often Techdirt writes about changes in copyright law that are only for the benefit of the big publishing and recording companies, and offer little to individual creators or the public. So it makes a pleasant change to be able to report that South Africa's efforts to update its creaking copyright laws seem, for the moment, to be bucking that trend. Specifically, those drafting the text seem to have listened to the callsfor intelligent fair use rights fit for the digital world. As a post on infojustice.org explains, a key aspect of copyright reform is enshrining exceptions that give permission to Internet users to do all the usual online stuff -- things like sharing photos on social media, or making and distributing memes. The South African text does a good job in this respect:

A key benefit of the Bill is that its new exceptions are generally framed to be open to all works, uses, and users. Research shows that providing exceptions that are open to purposes, uses, works and users is correlated with both information technology industry growth and to increased production of works of knowledge creation.

The solution adopted for the draft of the new copyright law is a hybrid approach that contains both a set of specific modern exceptions for various purposes, along with an open general exception that can be used to assess any use not specifically authorized:

The key change is the addition of "such as" before the list of purposes covered by the right, making the provision applicable to a use for any purpose, as long as that use is fair to the author.

In order to test whether a use is fair, the standard four factors are to be considered:

(i) the nature of the work in question;

(ii) the amount and substantiality of the part of the work affected by the act in relation to the whole of the work;

(iii) the purpose and character of the use, including whether --

(aa) such use serves a purpose different from that of the work affected; and

(bb) it is of a commercial nature or for non-profit research, library or educational purposes; and

(iv) the substitution effect of the act upon the potential market for the work in question.

Crucially, the legislators rejected calls by some to include a fifth factor that would look at whether licenses for the intended use were available. As the infojustice.org post points out, had that factor been included, it would have made it considerably harder to claim fair use. That's one reason why the copyright world has been pushing so hard for licensing as the solution to everything -- whether it's orphan works, text and data mining, or the EU's revised copyright directive. That rejection sends an important signal to other politicians looking to update their copyright laws, and makes the South African text particularly welcome, as the infojustice.org post underlines:

We commend its Parliament on both the openness of this process and on the excellent drafting of the proposed fair use clause. We are confident it will become a model for other countries around the world that seek to modernize their copyright laws for the digital age.

However, for that very reason, the fair use proposal is like to come under heavy attack from the copyright companies and their lobbyists. It remains to be seen whether the good things in the present Bill will still be there in the final law.