The concept of fair use doesn’t exist in South African law, says the legal lead of Creative Commons South Africa, Dr Tobias Schonwetter.
What we do have in South Africa is fair dealing. Schonwetter describes it as “a similar, yet considerably narrower concept that allows certain dealings with copyright materials without the permission of the rights holder.”
Schonwetter explained that fair dealing allows the use of a literary, musical and artistic work, as well as broadcasts and published editions for the purposes of research and private study, personal and private use, criticism and reviews, as well as reporting of current events.
When it comes to movies, sound recordings and computer programs, however, the private use exception doesn’t apply.
“Another provision in [the Copyright Act of 1978] states that back-up copies of computer programs may usually be made for personal and private purposes as long as one lawfully possesses the original of the program,” added Schonwetter.
The big question is what constitutes fair dealing, and what constitutes copyright infringement?
“There is no simple answer to this question,” says Schonwetter. “If it comes to the amount that is copied, I always suggest that the person copying the work asks him/herself whether it is really necessary for the purposes described previously to copy that much,” he added.
South African courts have not yet decided on the issue of what counts as fair dealing for personal and private use, explained Schonwetter. He suggested that it may be helpful to look at what courts in other jurisdictions that operate under similar fair dealing legislation have done.
Schonwetter went on to list the six factors Australian courts have used to detemine whether a “dealing” is fair:
- The purpose of the dealing;
- The character of the dealing;
- The amount of the dealing;
- Alternatives to the dealing;
- The nature of the work; and
- The effect of the dealing on the work.
“So the scope of fair dealing is to be decided on a case by case basis,” Schonwetter summarised. “In most cases, copying an entire work is unnecessary and therefore illegal. But there are instances where copying an entire work can be legitimate.”
Referring to previous discussions regarding the copyright on sound recordings, Schonwetter prefixes everything with a final warning: “Please be extra careful when it comes to music.”
Lance Michalson from Michalsons Attorneys puts it succinctly: “While copying music may not infringe the copyright of the artists, it will always infringe the copyright of the recording studio.” According to both Schonwetter and Michalson this is because recorded music is protected in two ways: As musical works and as sound recordings.
Michalson goes on to explain that this is the default (and most common) position of artists and recording studios, but that they can easily change the terms of the licence. “This is why it is important to know what your licence for the music contains,” he said.
Both the Recording Industry of South Africa (RiSA) and Michalson say that people shouldn’t be too worried about making personal copies for private use of music they already own licenses to. “It is our understanding that the relevant authorities are more concerned with those who sell pirated music to the public,” said Michalson.
RiSA has previously stated that it’s not interested in pursuing consumers who find themselves on the wrong side of the law for format shifting.
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