Insight
July 28, 2026
The Constitutional Court (CC) recently ruled that subsections of clause 12D of the proposed Bill constitute an arbitrary deprivation of property and were declared unconstitutional. The CC limited its findings to the President’s reservations regarding certain clauses only and therefore did not declare the whole Bill unconstitutional.
Parliament’s first and most obvious option is a minimalist response in which only these clauses are amended to comply with the Bill of Rights, and the Bill is then referred back to the President for signature. This will be a sad day for the wise authors of the Berne Convention who fought so hard for authors' and creative artists' rights. Berne stood the test of time, even in the digital era.
Parliament should rather start afresh and embark on a mission to modernise the Copyright Act. Some considerations include revisiting the introduction of the foreign fair use principle, how collecting societies are managed, and, most importantly, introducing generative artificial intelligence (AI) into the Copyright Act. There also remains a need to clarify the principles of fair dealing in respect of textbooks and other content.
Fair Use v Fair Dealing
The CC correctly points out that Fair Use, mostly used in the US, is a well-established principle that meets the requirements of Berne's three-step-test. The CC failed to draw attention to the reasons why the case law on Fair Use is better developed than that on Fair Dealing. SA's overburdened court system cannot compete with the US's system, and the litigious nature of fair Use will most likely lead to more frustration for authors than the status quo.
Collecting Societies
Carte Blanche and other investigative journalists drew our attention to multiple investigations and scandals where these societies allegedly deprived authors and creative artists of royalties. The legislation is already there. Amendments to the Copyright Act should therefore focus on the Use of digital compliance tools (technological protection measures and governance), with heavy penalties if office bearers are found guilty of syphoning authors' royalties.
Artificial Intelligence
The principles of copyright have never changed since the Gutenberg Press, or the digital printer, or, more recently, generative AI. The ability to make infringing copies of copyright-protected content merely became viral. A static piece of legislation will not cure this challenge. Rather, make provisions in the regulations to utilise digital protection measures, with real-time royalty distribution models. iTunes already got this right – embrace technology, do not regulate it.
Textbooks
Consider the following example. When a student copies a textbook, she wants access to the content, be that in digital or analogue format – she does not really want the piece of paper.
An A4 sheet costs about 5 cents. A photocopier’s click fee for a B&W copy is about 25 cents. A copy and print shop charges about R1,50 for a single copy, which they also need to cover the shop's rent, the rental of the photocopier, labour, indirect costs, and a profit margin. If the copy is made at a university library, a fee to a collecting society would typically be 5 to 10 cents per copy, of which the collecting society will retain 20%. Of this 10 cents, the author and publisher will have a benefit sharing agreement in place – let's argue it is 15% royalty. This example illustrates that the author (the creator of the content) will typically only see 1,5 cents of the final copy of R1,50 at a copy shop. No wonder the CC considered section 12D on textbooks unconstitutional deprivation of authors' rights.
Authors and creative artists should be protected whilst creating content, and amendments to the Copyright Act should be directed at using technological measures to do so, not at litigious fair use mechanisms.
