The legal framework
South Africa, as a signatory to the Berne Convention, is bound to frame its national copyright legislation within certain parameters and to abide by the provisions of Article 9(1) according to which authors have the exclusive right to authorise reproduction of their works in any manner or form.

However, recognising the need for special provisions to take account of educational needs, Article 9(2) of the Berne Convention allows member states to permit the reproduction of copyright-protected works in certain special cases, provided that such reproduction does not conflict with a normal exploitation of the work or unreasonably prejudice the legitimate interests of the author. Thus, while copyright law reserves to the copyright owner the exclusive right to undertake certain acts in regard to that work, it recognises that some uses of copyright-protected works do lie outside the owner’s control, and it consequently provides for exceptions to the exclusive right. While many users regard these exceptions as their rights, they are technically exemptions from liability or, in other words, defences to what would otherwise be infringing acts.

In accordance with Article 9 of the Berne Convention, the South African Copyright Act, sets out general exceptions from the protection of literary works. Section 12(1)(a) states that fair dealing with 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.

But what is fair dealing?
The Act does not provide a precise definition. “Fair dealing” permits the users to copy, for their own study or research or private use, as much of the work as is necessary to meet their reasonable needs, without seeking permission from the copyright owner or paying compensation.

For many users this definition is insufficient. They ask the question:

How much may I copy under fair dealing?
One cannot say how much, for what is fair in each particular case will depend on the circumstances of that case. Contrary to wide-spread belief, South African law does not specify that 5%, or 10%, or 20% - or any percentage - is “fair”, and nor does it say that a single copy may be made as long as it does not constitute a “substantial amount”. If you were to copy a large portion of a book or journal, and were then charged with copyright infringement, you would have to convince the court that your actions were fair, given your circumstances. Copyright experts agree that fair dealing is a question of fact and impression having regard to all the circumstances, and 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, and it cannot be, since it rests, as we have seen, on a particular set of circumstances. In some countries, voluntary guidelines have been developed. 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 accept, as within the bounds of fair dealing for research or private study, one copy of a maximum of one chapter in a book, or 5% of a complete work. The British guidelines have no legal force, but might be of persuasive value as a defence in 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. This means that you may quote in print from a published copyright protected work in certain circumstances – but, again, no limits are specified. The source and the author must always be acknowledged.

Is there any difference between fair dealing and fair use?
On the other hand, in the United States, fair use is by law determined qualitatively as well as quantitatively. Section 107 of the US Copyright Act states that it depends on 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.

The essence of fairness
One has always to remember that it is not ‘fair’ to deprive authors and publishers of their just income. Authors and publishers earn income, not merely from sales of the primary product such as the book, journal or periodical, but also from the fees collected in respect of sub-licences including licences to copy by means of reprographic reproduction. If your copy deprives the rights’ owner of income, then it is not fair, and cannot be regarded as fair dealing.