Fair Use Versus Fair Dealing: An Examination of the South African Copyright Amendment Bill

Economic growth theory has since linked innovation to growth hence countries developed a system in which works of human ingenuity are protected  through a system of intellectual property rights,[1] which from  a copyright perspective intitially was done through  domestic legislation and the 1884 Berne Convention for the Protection of Literary and Artistic Works. Despite guarding the system of monopoly to innovation jealously, the states parties to the Berne Convention enabled inroads through free uses to the rights under protection as provided for under Articles 9, 10, 11. However, these exceptions are carefully circumscribed by the three-step test contained in the Berne Article 9(2) and replicated  in the Agreement on Trade-Related Intellectual Property Rights commonly known as the TRIPs Agreement in its Article 13.[2] Since the Berne Convention provides a template for copyright protection by prescribing minimum standards of protection, it follows that copyright legislation of the Berne’s states parties resemble the Convention albeit with some differences in the implementation of the said minimum standards.

*LL.B (Lesotho); LL.M (Essex); PhD (Bern). Email address: Malebakeng.Forere@wits.ac.za. I am thankful to Professor Thomas Cottier for his very helpful comments.

[1] Rana P Maradana and others, ‘Does Innovation Promote Economic Growth? Evidence from European Countries’ (2017) 6 Journal of Innovation and Entrepreneurship 1; Gene M Grossman and Elhanan Helpman, ‘Endogenous Innovation in the Theory of Growth’ (1994) 8 The Journal of Economic Perspectives 23; Paul M Romer, ‘Endogenous Technological Change’ (1990) 98 Journal of Political Economy S71.

[2] Note that Article 9(2) of the Berne Convention applies to reproduction rights of literary and artistic works while the TRIPs Article 13 extended it all rights.