Fair Use or Fair Dealing in Africa: The South African Experience

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Abstract This chapter traces South Africa’s experience with addressing the fair use versus fair dealing dilemma in its copyright statute, and assesses both the practical implications and efficacy of the manner in which it has applied itself to the operation, use, and application of the fair dealing exception in practice. The chapter questions the efficacy of any fair dealing/fair use exceptions that may be adopted in South Africa, by assessing the manner in which the amendment process has engaged with the fair dealing exception and comparing it with how existing exceptions have been implemented in practice. The chapter starts by tracing South Africa’s experience on the path to reforming its fair dealing exceptions regime within its comprehensive copyright reform process. It identifies three main camps to the exceptions debates in South Africa: those arguing for fair use contextualized for South Africa; another arguing for the rejection of fair use for what is, in their opinion, its unsuitability in terms of form and the manner in which it was proposed and adopted; and those arguing for the retention of the current fair dealing system, albeit in a slightly modified form. Noting that each of these camps presents arguments aligned with their respective conceptualization of the purpose of copyright exceptions, the chapter highlights the absence of considerations as to what would make exceptions work in practice in the specific context of South Africa. The chapter concludes by suggesting how government action and citizen participation can play a greater role towards actualizing the purpose(s) that exceptions aim to serve.