Abstract
The rationale of copyright protection requires a consideration of “private” and “public” interests. To balance these competing interests, exceptions such as “fair use” and “fair dealing” was introduced. These exceptions have been said to be the statutory expression of rights such as Freedom of Expression. Due to the lack of judicial authority on this in South African law, a comparative study of the United States of America and the United Kingdom was conducted. In the United States of America, the system of “fair use” is used which is wide and flexible. Whereas, the United Kingdom and South Africa follow an approach that in order to potentially be viewed as “fair dealing”, the use involved must qualify as a specifically recognised purpose. The South African position is however potentially subject to amendments to introduce an overlapping “fair use” and “fair dealing” exception. However regardless of whether “fair use” or “fair dealing” is applied, a user must overcome a barrier of economic harm. As for international compliance, any exception to copyright must adhere to the “three-step test”. It is clear that the “fair dealing” approach is compliant. However, that of the “fair use” approach is doubtful. In addition there is a potential “pay-per-use” system, in all three jurisdictions, despite the use itself being lawful. The only circumstance in which such a system may be said to be valid is for so called “new distributions of works”. As for whether South Africa should adopt a “fair use” system, such approach has the benefit of flexibility and easier adaptability to advances in society, but is also uncertain and of doubtful compliance with international requirements. Whereas, although “fair dealing” has a level of certainty it can be more rigid due to its threshold requirement. For a developing country, such as South Africa that relies on “digital” formats of work, having a vague and uncertain system is not appropriate. This is so because, such as system has been shown to lead to cautious users which in turn creates a “pay-per-use” system which would violate the very aim of copyright law. Thus reform is plainly needed of a middle-way approach, whereby a threshold requirement is retained and various established factors are incorporated to help determine fairness. However, a more dangerous threat to the survival of both doctrines is the creation of new technology that greatly influences the manner in and extent to which works are protected. This has resulted in protection not only to the content of work but also to the manner of accessing it. Reform is needed in all the jurisdictions under discussion to provide for a specific and more definite “fair use” or “fair dealing” exception to this new protection. If this is not done, then whether use falls under either of these doctrines would be inappropriately dependant on the discretion of the owner of the work.
LL.M. (Commercial Law)