9 January 2023

Does “Fair Use” exist in South African Copyright law?

In South Africa, the concept of fair use is codified in the Copyright Act, 1978. Section 12 of the Act sets out the circumstances in which fair use of a copyrighted work is permitted without the need to obtain permission from the copyright owner.

According to Section 12, the fair use of a copyrighted work is not an infringement of copyright if it is used for the following purposes:

  • Private or domestic use, including research or study
  • Criticism or review
  • News reporting
  • Education, including teaching, scholarship, or research
  • Incidental inclusion in a broadcast or sound recording

In determining whether a use is a fair use, the following factors are taken into account:

  • The purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.
  • The nature of the copyrighted work.
  • The amount and substantiality of the portion used in relation to the copyrighted work as a whole.
  • The effect of the use upon the potential market for or value of the copyrighted work.

It is important to note that the fair use doctrine is an affirmative defense to copyright infringement, which means that if a use is found to be a fair use, the user cannot be held liable for copyright infringement. However, if a use is not found to be a fair use, the user may be held liable for copyright infringement and may be required to pay damages to the copyright owner.

– Written by ChatGPT, reviewed by Christian Tabor-Raeside