United States corporate group pressures South Africa to drop fair exemption use from new copyright law

The South African government has rebuffed recent criticism from US copyright industries over its plan to introduce the principle of fair use into South African copyright law. This reform, the government argues, is necessary for the country’s copyright regime to stay abreast of innovation and the changing digital landscape, potentially making South Africa more attractive to artificial intelligence companies.

The International Intellectual Property Alliance (IIPA), which includes the Recording Industry Association of America, has expressed concerns that South Africa’s proposed changes will introduce excessive limitations on copyright. They fear this could weaken copyright protection and be exploited by various users, including AI companies.

In response, the South African government insists that the proposed amendments will modernize its copyright system, ensuring it can adapt to technological advancements and the evolving digital environment.

The IIPA’s objections were outlined in a submission to the US Trade Representative, criticizing the planned reforms that have been in development for years. These changes aim to amend provisions around copyright exceptions, which currently, like in UK copyright law, specify particular scenarios where exceptions apply. The proposed fair use principle would allow more extensive exceptions, permitting third parties to use copyright-protected works without permission if the use is deemed fair by the courts.

Ironically, US copyright owners oppose South Africa’s adoption of a principle from US copyright law. American copyright owners often face fair use claims in US courts, especially from AI companies arguing that AI training constitutes fair use. This contention is at the heart of many lawsuits against AI firms for using existing content to train generative AI models without obtaining permission.

The IIPA argues that South Africa’s fair use principle would be broader and more problematic than the US version. Their submission to the USTR stated that the changes would “create an overbroad amalgamation of copyright exceptions that includes an expansive ‘fair use’ rubric—not in line with the US doctrine—appended to a large number of extremely open-ended new exceptions and limitations to copyright protection.”

In its response, the South African government highlighted the global trend towards more open copyright systems that keep pace with innovation. They described their current system as “outdated, limited, and static,” insufficient for the digital age. A fair use system, they contend, will be “progressive, dynamic, and future-proof.”

South Africa points to the success of fair use in the US, noting its inclusion in the US Copyright Act of 1976 and its adaptability to new technologies. They also mention other countries adopting or considering fair use, praising its benefits for users and producers of information and knowledge.

The IIPA seeks to pressure the South African government through ongoing trade negotiations with the USTR. While US copyright industries typically oppose new copyright exceptions abroad, this opposition is particularly intense due to the current focus on AI. Whether the USTR can force a rethink in South Africa remains uncertain, but for now, such an outcome appears unlikely.

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