By André Myburgh*. Ostensible reassurances about the benefits of the introduction of ‘fair use’ in South African copyright law (Why fears about ‘fair use’ copyright law are unfoundedneed deeper scrutiny.

Like American University’s Professor Sean Flynn, I spent the first week of August at the South African parliament’s public hearings on the Copyright Amendment Bill and my experience there of unfounded claims about ‘fair use’ was quite different.

Parliament was entertained with a recital of a poem quoting tiny excerpts from songs, with the claim that ‘fair use’ was necessary so the poem would not infringe copyright. I and most, if not all, the other copyright lawyers in the room, were quite certain that it would not infringe copyright under the existing act.

Much was made in Parliament and in the Google-sponsored workshop that preceded it, both addressed by Prof. Flynn, of the supposed benefits of ‘fair use’ for creative purposes. Far less attention was given to recent developments in US law on the application of ‘fair use’ for technological uses, which has also been referred to as ‘non-expressive uses’, which are purely consumptive.

‘Fair use’ is not about ‘uses’ of copyright works that are ‘fair’. It is the name of a statutorily codified defence of copyright infringement in US law, which requires evaluation against four prescribed factors of the reproduction of the copyright work that has been made without permission.

It is also not the case that all four factors have to be met in the evaluation for a ‘fair use’ defence to succeed. A finding giving strong precedence to one of the factors supporting a fair use defence can outweigh neutral or even negative findings on the other factors.

We hear about internet search engines and other technological applications, all of which use machines to ‘read’ millions of works with the purported purpose of ‘expanding our knowledge and improving our lives’. This description does not cover the Google Books Project, which started with Google making digitized reproductions of entire book collections of participating libraries and keeping a copy for purposes that were held by the US courts to constitute ‘fair use’, namely the making available on the internet of bibliographical data and so-called ‘snippets’.

The concern publishers have with this result, which was raised by the Publishers Association of South Africa (PASA) at the hearings, was that this case and others are causing US ‘fair use’ law to become — in the words of Jon Baumgarten, former general counsel of the US Copyright Office — ‘a legal regime that permits regular, concerted, systematic, commercially purposed, 100% complete and uncompensated copying without permission, day in day out, of millions of copyrighted books’.

The digitization exercises must have left Google with the world’s biggest library, without having bought a single book. In having the purposes for which Google made these reproductions declared "fair use", copyright owners have in effect been denied the possibility of implementing the same kind of innovation in respect of the copyright works that they own. It is in this context that many critics of ‘fair use’ talk about it being a system where the economic value of their works is transferred to technology companies, coupled with ‘notice and take down’ that, with the rapid expansion of the internet, is proving ineffective in combating online piracy.

It is therefore little wonder that the PASA banded together with other associations whose members rely on copyright to challenge this and other changes proposed in the bill.

In his criticism of the approach made by the Copyright Alliance, Prof. Flynn conflates criticism of the new section 13B, with its additional exceptions for educational purposes, with the bill’s intended application of ‘fair use’ to education. Considering the decade-long litigation in the USA between publishers and Georgia State University about its application of ‘fair use’, one can hardly be comforted by Prof. Flynn’s claim that the prospect of litigation around ‘fair use’ is not something to be concerned about.

An optimal mechanism for technology companies to reproduce copyright-protected works in such a way that creative industries can still harness the economic benefits from those uses of their works has yet to be found. 

Credit: the text of this op-ed first appeared in Business Day on 24 August

*André Myburgh is a South African attorney and foreign counsel at Lenz Caemmerer in Basel, Switzerland. He is copyright counsel for the International Publishers Association (IPA), the Publishers Association of South Africa (PASA), and the Dramatic, Artistic and Literary Rights Organisation (DALRO).