Fair use debate hits the South African Music scene

In South Africa’s evolving music landscape, copyright protection is essential for musicians to sustain their livelihoods. With the Copyright Amendment Bill introducing “fair use” as a potential addition to existing laws, musicians face new challenges to controlling their creative output.

This article explores how the adoption of fair use could affect the rights of South African musicians, examining the implications of this shift and the urgent need for balance in modern copyright legislation.

The success of the South African music industry and its artists heavily relies on the safeguarding of intellectual property (IP). For musicians, their creative output—musical works, lyrics, and recordings—constitutes IP, in the form of copyright.

This copyright grants musicians control over how their creations are used, enabling them to make a living by selling or licensing their work. Yet, with recent discussions surrounding the Copyright Amendment Bill, a new risk looms in the form of ‘fair use,’ which could substantially weaken musicians’ rights and impact their livelihood.

The South African Copyright Act, though seen as somewhat outdated, provides a critical framework allowing artists to protect and control their work. It currently includes ‘Fair Dealing,’ a provision that permits limited use of copyrighted material without permission in specific, clearly defined circumstances.

The threat of fair use

The idea of fair use, originating from the United States, introduces a much broader and more ambiguous approach compared to Fair Dealing. While fair use considers factors like the purpose of use, the amount used, and the effect on the potential market, its lack of clarity makes legal outcomes unpredictable.

Proponents suggest that adopting fair use could modernize copyright laws and keep them aligned with technological advances.

However, the existing Copyright Act already allows for updates, like introducing exceptions for personal use, without the need for fair use’s uncertainties. Many South African musicians and industry professionals argue that fair dealing’s flexibility already allows for reasonable adaptation.

Global pitfalls

The international experience with fair use raises concerns, as seen in countries like Canada and New Zealand, where similar frameworks have had negative impacts on creative sectors.

For South Africa, adopting fair use could have serious consequences for the music industry, which is valued at about R2 billion and growing. The introduction of fair use could jeopardize this industry.

The copycat dilemma

Generative AI (GenAI) technologies have further highlighted the risks posed by fair use. With advancements in AI, systems are increasingly capable of replicating artistic works, including music, based on existing data. AI models that “learn” from artists’ work can create outputs that may compete directly with the artists who initially inspired them.

Major record labels are already suing AI developers who use their music to train their models. The rise of fair use could permit AI to utilize artists’ work without compensation, posing a significant threat to creators.

An unprecedented hybrid

The legislature’s proposal goes beyond introducing fair use, aiming to combine it with Fair Dealing, an approach unique to South Africa that lacks a clear legal basis.

Fortunately, the President has recently referred the Copyright Amendment Bill to the Constitutional Court over concerns about its constitutionality, with a hearing scheduled for late November 2024.

Staying informed

Musicians must stay informed about copyright and contracts, as knowledge of these topics is essential for navigating today’s music industry. With the upcoming Constitutional Court ruling on the Copyright Amendment Bill, it’s vital for musicians and industry stakeholders to remain engaged in this discussion.

“While legal updates are necessary to reflect the digital age, fair use is not the answer. South Africa should instead focus on refining copyright laws to protect artists while ensuring reasonable public access to creative works,” says Nick Matzukis, Head of Music Law at the Academy of Sound Engineering.

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