Fair use and fair dealing in Copyright law : a comparative analysis

Abstract

The advent of upcoming changes to South Africa’s copyright regime in the nature of the Copyright Amendment Bill B13F-2017 (‘the CAB’), specifically the introduction of fair use provisions to exist alongside the existing fair dealing provisions within South Africa’s existing copyright framework, has been central to a debate amongst experts, scholars, artists and users alike. The metamorphosis of current legislation achieved through the integration of fair use provisions unearths the further question of how South Africa’s copyright regime balances the rights of copyright owners with public access. The Constitutional Court judgment in Blind SA v Minister of Trade, Industry and Competition has illuminated that rigid adherence to the statutory exceptions within the current copyright framework may not sufficiently address the disproportionate impact on vulnerable groups, such as persons with disabilities. Fair dealing within the existing South African copyright framework is not defined, and the dearth of authorities concerning its application makes it all the more challenging to anticipate how the proposed fair use provisions will affect stakeholders. The application of fair dealing with a musical work remains unclear. The existing paucity of case law involving fair dealing with musical works compounds the uncertainty about the scope of fair use in this context. Proponents and opponents of fair use in the domain of musical works often emphasise theoretical benefits or disadvantages, but there appears to be a lack of in-depth engagement with the intricate legal procedures and judicial interpretations involved in the course of applying the respective doctrines in their jurisdictions, resulting in a superficial debate. This dissertation explores the differences and similarities between fair dealing and fair use, specifically in relation to musical works, and in doing so, hopes to add substance and depth to the debate about the future co-existence of these two doctrines within a single piece of legislation.