South Africa's copyright legislation abides by the Berne Convention. This means authors have the exclusive right to authorise reproduction of their works in any manner or form.
The Convention does make special provisions for educational needs. It allows member states to permit the reproduction of copyright-protected works in certain special cases, but the reproduction can't interfere with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the author. The copyright owner still has the exclusive right to undertake certain acts with his work, but the law recognises some uses of copyright-protected works do lie outside the owner's control. These are the exceptions to the exclusive right. While many users regard these exceptions as their rights, they are technically exemptions from liability or defences for acts that would otherwise infringe copyright law.
The South African Copyright Act sets out general exceptions from the protection of literary works. Section 12(1)(a) says fair dealing of a copyright-protected literary work is permissible for the purpose of research or private study or for the personal or private use of the person using the work.
What exactly is fair dealing?
Fair dealing allows a user to copy, for their own study or research or private use, as much of the work as they need to meet their reasonable needs, without seeking permission from the copyright owner or paying compensation.
How much may I copy under fair dealing?
The Act doesn't give us a precise definition, so we can't say how much! It depends on the circumstances of each case. South African law does not specify that 5%, or 10%, or 20% - or any percentage - is "fair", and it doesn't say that you can make a single copy as long as it doesn't constitute a "substantial amount". If you were to copy a large portion of a book or journal, and were charged with infringing copyright, it would be up to you to convince the court that your actions were fair.
Copyright experts agree that fair dealing is a question of fact and impression based on the circumstances. In some circumstances taking too much of a work, or even taking small amounts of a work on a regular basis, would not be fair.
Fair dealing is not quantified in any law because it depends on a particular set of circumstances. Some countries have developed voluntary guidelines, e.g. in Norway 15% of a complete work or 30 pages, whichever is the lesser, is considered fair for private use. In Britain the Publishers' Association, the Writers' Guild and the Society of Authors say one copy of a maximum of one chapter in a book, or 5% of a complete work for research or private study is fair. The British guidelines have no legal force, but could be used to persuade a South African court.
As well as research or private study, personal or private use, the South African Copyright Act considers it fair dealing to use a work for the purposes of criticism or review, or for the purpose of reporting current events in a newspaper, journal or magazine. You may quote in print from a published copyright protected work in certain circumstances - but, again, no limits are specified. You must always acknowledge the source and the author.
Is there any difference between fair dealing and fair use?
In the United States, fair use is by law determined qualitatively and quantitatively. Section 107 of the US Copyright Act uses these four factors:
- The purpose and character of the use
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the whole
- The effect of the use on the potential market for the work
What about multiple copies?
South African copyright law doesn't specify how much you may copy within the bounds of fair dealing, but it is clear that it must be for your own use. So, multiple copies are outside of fair dealing.
The essence of fairness
It is not 'fair' to deprive authors and publishers of their rightful income. Authors and publishers earn an income, not merely from selling their books, journals or periodicals but also from the fees collected for sub-licences. These include licences to copy by reprographic reproduction. If your copy deprives the rightsholder of income, then it's not fair, and you can't regard it as fair dealing.