When it comes to copyright law, two important concepts often arise: fair use and fair dealing. Both terms relate to exceptions in copyright law, allowing the public to use copyrighted material without obtaining permission from the copyright owner in certain situations. However, they function differently in various countries. South Africa, in particular, is undergoing a shift from fair dealing to a more flexible fair use system with the introduction of the Copyright Amendment Bill. Here's a breakdown of how these concepts compare and what it means for creators and users in South Africa.
What is Fair Use?
Fair use is a legal doctrine that permits the limited use of copyrighted works without needing to obtain permission from the copyright owner. Common in countries like the United States, fair use allows works to be used for purposes such as criticism, commentary, news reporting, teaching, academic writing, or research. Each case of fair use is evaluated based on four factors:
What is the purpose and character of the use (commercial or educational).
What is the nature of the copyrighted work (creative or factual).
What is the amount and substantiality used (what percentage of the original work was used).
What is the effect of the use (on the market value of the original work).
Fair use provides more flexibility than fair dealing, as it allows for a broader range of uses. However, it also introduces a level of uncertainty, as each case is judged on its individual merits.
What is Fair Dealing?
Fair dealing is a legal exception in copyright law that allows the use of copyrighted material for specific purposes, without needing permission from the copyright owner. Unlike fair use, which offers broader flexibility, fair dealing is more narrowly defined, focusing on prescribed limited uses defined in the Copyright Act. Unlike fair use, fair dealing is a more restrictive concept of use and is found in countries with a commonwealth influence, such as South Africa (under the current law), the UK, and Canada. The specific uses where fair dealing can be applied include:
Private study or research.
Criticism or review.
Reporting current events.
In South Africa, fair dealing has traditionally provided fewer exceptions to unauthorised use of content, and the uses permitted are more clearly defined. However, with the Copyright Amendment Bill, South Africa is shifting towards a fair use system, offering greater flexibility in how copyrighted material can be used.
Fair Use vs Fair Dealing in South Africa
With the introduction of the Copyright Amendment Bill, South Africa is moving closer to adopting a fair use framework. This shift would bring the country's copyright system in line with modern digital realities, where content sharing and remixing are common, particularly on social media platforms. Under the new system, more uses of copyrighted material may be permissible without prior authorisation from the copyright owner, offering more room for creativity and innovation.
The Importance of Fair Use Online
As we move deeper into an online world where content is shared globally, fair use is becoming increasingly important. Platforms like YouTube, TikTok, and Instagram thrive on user-generated content, much of which repurposes copyrighted material. Without fair use provisions, creators would face constant legal obstacles, making it difficult to express themselves freely or comment on culture.
Additionally, the rise of artificial intelligence (AI) and its ability to generate content based on existing works adds a new layer of complexity to copyright law. South Africa’s move towards a fair use system could help address the challenges that come with AI-generated content and copyright infringement in the digital space within the national legal system.
AI and Copyright Law Under the New Copyright Amendment Bill
The Copyright Amendment Bill also indirectly impacts how AI-generated content will be handled. As AI increasingly replicates human creativity by producing works based on copyrighted material, fair use could provide a legal framework to determine when such use is permissible. This could be crucial in industries like film, music, and literature, where AI is starting to make its mark. This also has the potential to provide economic benefits to South Africa by making the country an attractive place for investment and the establishment of new AI startups due to the fair-use-friendly copyright attitude. It will, however, be interesting to see how the judicial system will balance these potential economic benefits with protecting the vulnerable rights of creators in the years to come.
Key Differences Between Fair Use and Fair Dealing in Copyright Law:
Flexibility: Fair use is broader and more flexible, while fair dealing restricts the use of copyrighted material to specific cases.
Judgement: Fair use requires a case-by-case analysis to determine if the use is permissible, while fair dealing clearly defines the situations in which copyrighted material can be used.
South African Shift: With the Copyright Amendment Bill, South Africa is moving towards a more flexible fair use system, aligning with modern content-sharing practices.
Tips to Avoid Copyright Infringement in the Digital Age:
Understand Fair Use/Fair Dealing: Always evaluate whether your intended use of a work falls under fair use or fair dealing provisions, particularly with the new Bill. Ensure that you are following the principle that is applied in your country.
Seek Licensing: When in doubt, consider obtaining a copyright licence or permission from the copyright owner to avoid potential legal issues.
Attribute Properly: Even if your use qualifies under fair use or fair dealing, giving credit to the original creator can often help avoid disputes.
Understanding the difference between fair use and fair dealing is essential for anyone dealing with copyrighted materials, especially as South Africa’s copyright law evolves with the Copyright Amendment Bill. As the digital world continues to grow, fair use becomes more relevant in balancing creativity, innovation, and copyright protection. By staying informed and compliant, creators and users alike can navigate the complexities of copyright law effectively. We want to hear your questions on copyright law! Send us an email at info@debeerattorneys.com to start the conversation today.
This information was last updated on 14 September 2024. This information is for general educational and entertainment purposes and is subject to change at any time.