Project on the Right to Research in International Copyright Filing in South Africa on the Copyright Amendment Act

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Dear Mr. Chairman:

We are writing on behalf of the Project on the Right to Research in International Copyright, which is an activity of the Global Expert Network on Copyright User Rights. We are writing to advise Parliament not to delete “research” from the specifically enumerated purposes for which the fair use exception in Section 12A may apply and to add a reference to “computer analysis” as a permitted purpose.

Parliament proposes deleting in Section 12A references to several purposes which are also protected in Section 12B in order to avoid duplication. Other fair use provisions, including in the US, mention purposes that are also subject to specific exceptions elsewhere in the law. This is important because fair use can extend to one use Furthermore those mentioned in a specific exception. And for the same reason, a specific exception can define uses that are exempt from copyright on public policy grounds that are more specific than those of fair use. These specific policy judgments can both clarify and broaden the universe of lawful uses that are exempt from fair use, and fair use can in turn protect activities that legislators may not provide for in their specific exemptions. The two approaches may overlap in some cases, but they are complementary and not redundant. We therefore advise against removing additional illustrative purposes in fair use law for the offered purpose of avoiding duplication.

In particular, we recommend that you reserve the right to state “research” as a permitted purpose. Although the inclusion of “how” language makes the list of enumerated purposes open-ended, we advise that South Africa follows the example of all other countries of fair use and treatment and specifically mentions “research” as a protected use of copyrighted material. This is particularly important as otherwise research as a protected use would not be explicitly mentioned in the law.

Empirical research shows that more citable research results are published in countries with “open” research exceptions – i.e. exceptions that explicitly mention “research” as a protected purpose and are open to all uses (e.g. reproduction and communication) for all works and on all users. Empirical research also shows that text and data mining research – often referred to as “computational analysis” – is encouraged by exceptions that explicitly allow such practice as a protected purpose. The recent copyright reforms in Japan and Singapore are exemplary.

The CAB can take full advantage of copyright research exceptions by adding the following to the list of enumerated purposes protected by the fair use clause in Section 12A:

(x) Fellowship and research, including computer analysis.

In conclusion, we note that the proposed addition of Section 12A(d) appears duplicated and potentially harmful. The section could be interpreted to require that the four-factor fair use test be applied by courts in addition to the internal limitations already contained in each specific exception. The application of the fair use factors on top of these existing tests appears duplicated and may have unintended consequences for the development of South African jurisprudence.

We thank Parliament for its consideration and look forward to further consultation on these matters.


Sean Flynn, American University Washington College of Law (Council of Record), on behalf of the Right to Research Academic Steering Committee:

  • Patricia, Aufderheide, American University, USA
  • Brandon Butler, University of Virginia, USA
  • Michael Carroll, PIJIP, USA
  • Jorge Contreras, University of Utah, USA
  • Carys Craig, University of York, Canada
  • Christophe Geiger, Luiss Guido Carli University, Rome
  • Michael Geist, University of Ottawa, Canada
  • Lucie Guibault, Dalhousie University, Canada
  • Christian Handke, Erasmus University Rotterdam
  • Ariel Katz, University of Toronto, Canada
  • Dick Kawooya, University of South Carolina, USA
  • Niva Elkin Koren, University of Haifa, Israel
  • Thomas Margoni, CiTiP, KU Leuven; CREATE, University of Glasgow,
  • Caroline Ncube, University of Cape Town, South Africa
  • Joao Pedro Quintais, IVIR, The Netherlands
  • Allan Rocha, Federal University of Rio de Janeiro, Brazil
  • Matthew Sag, Loyola University Law School, Chicago, USA
  • Rachael Samberg, University of California, Berkeley, USA
  • Arul Scaria, National University of Delhi, India
  • Tobias Schonwetter, University of Cape Town, South Africa
  • Martin Senftleben, IVIR, The Netherlands
  • Kimberlee Weatherall, University of Sydney, Australia
  • Ben White, University of Bournemouth, UK

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