Copyright Amendment Bill in South Africa: Fair Use Status

Key takeaways

• South Africa’s Copyright Amendment Bill proposes a general fair-use exception, but that proposal was not operative law in the official sources checked for this article on 20 July 2026. The Copyright Act 98 of 1978, as amended and affected by court orders, remains the starting point. Its section 12 uses fair dealing for specified purposes in relation to literary and musical works; it does not contain the Bill’s proposed open-ended section 12A fair-use framework.
• On 26 June 2026, the Constitutional Court held that proposed section 12A was constitutional within the scope of the President’s referral. The Court also upheld several other proposed exceptions, but declared proposed section 12D(1)–(5), dealing with broad educational and academic copying, unconstitutional. The judgment did not enact the Bill, rewrite the invalid provisions or make fair use available immediately.
• Until an amended measure is assented to, signed, published and brought into force, use current law rather than the proposed fair-use test. Anyone making a publication, licensing, education, library or technology decision should record the date and legal text used because the position is still moving.

1. Status at a glance

The copyright glossary explains the underlying right. This article addresses the narrower and date-sensitive question of what the Bill, judgment and proposed fair-use clause mean at this stage.

2. How the Bill reached the Constitutional Court

The reform process has moved through several constitutional stages:

• The Bill was introduced in 2017 and passed by Parliament in 2019.
• In June 2020, the President referred it back to Parliament under section 79(1) of the Constitution. His reservations included procedure, public participation, property rights and the compatibility of proposed copyright exceptions with international obligations.
• Parliament reconsidered the Bill and passed a revised version on 29 February 2024. It was resubmitted for assent shortly afterwards.
• The President accepted that specified procedural concerns had been addressed but maintained substantive reservations. On 10 October 2024, he referred provisions of the Bill and the parallel Performers’ Protection Amendment Bill to the Constitutional Court.
• The Constitutional Court heard the matter in May 2025 and delivered judgment on 26 June 2026.

Section 79 of the Constitution matters because the President must assent to a Bill or return it to the National Assembly if there are constitutional reservations. If a reconsidered Bill does not fully accommodate those reservations, the President may assent or refer it to the Constitutional Court. Section 79(5) requires assent where the Court decides the Bill is constitutional. Here, however, the Court found part of the referred Bill unconstitutional. Its order therefore does not support treating the complete text sent to the Court as ready-made operative law.

The practical test is publication and commencement, not the existence of a favourable judgment about one clause. A Bill becomes an Act after assent and signature, must be published promptly, and takes effect when published or on a date determined under the Act. Check each of those events before changing a rights policy.

3. What copyright exception applies now?

Current section 12(1) provides fair dealing with a literary or musical work for listed purposes:

• research or private study by the person using the work;
• that person’s personal or private use;
• criticism or review of that work or another work; and
• reporting current events in the forms described by the section.

The provision also contains source and author acknowledgement requirements for criticism, review and specified current-event reporting. Other subsections and regulations address matters such as quotation, teaching illustration, judicial proceedings and permitted reproduction. Other categories of work have their own statutory provisions.

That framework requires two separate questions. First, does the use fall within a purpose and work category covered by the current exception? Second, is the dealing fair in the circumstances? A useful purpose label does not finish the enquiry. The amount and importance of the material used, the availability of the work, acknowledgement, the effect on the rights holder and whether the use substitutes for an authorised copy can all matter.

Avoid these shortcuts:

• “Educational” does not automatically mean permitted.
• “Non-commercial” does not automatically mean fair.
• Giving credit does not replace permission where permission is required.
• There is no universal percentage of a work that is always safe.
• Material being online does not make it free of copyright.
• A licence term cannot be ignored merely because a statutory reform has been proposed.

The current Act also has a separate court-ordered position for accessible-format copies. In Blind SA v President of the Republic of South Africa, the Constitutional Court ordered in May 2025 that a section 19D be read into the Act pending remedial legislation. It permits defined accessible-format activities under conditions set out in the order. That focused remedy is current because of the Court’s order; it is not evidence that the rest of the Bill or a general fair-use clause has commenced.

4. What proposed section 12A would change

Proposed section 12A would replace a closed-purpose starting point with a more flexible fair-use framework. It says that fair use of a work or performance for purposes “such as” listed examples would not infringe copyright. The examples include:

• research, private study or personal use;
• criticism or review;
• reporting current events;
• scholarship, teaching and education;
• comment, illustration, parody, satire, caricature, cartoon, tribute, homage or pastiche;
• preservation of and access to library, archive and museum collections; and
• proper performance of public administration.

The words “such as” make the list illustrative rather than closed. That flexibility is the main structural difference from the current fair-dealing starting point. It does not mean any socially useful use would qualify.

The proposed factors

Proposed section 12A requires all relevant factors to be considered, including:

1. the nature of the work;
2. the amount and substantiality of the part affected compared with the whole work;
3. the purpose and character of the use, including whether it serves a different purpose and whether it is commercial or for non-profit research, library or educational purposes; and
4. the substitution effect on the potential market for the work.

The proposal also requires the source and author to be mentioned if the author’s name appears on the work.

These are balancing factors, not four boxes that guarantee a result. A small extract can still be important if it takes the heart of a work. A non-profit use can still replace licensed demand. A commercial use is not automatically excluded, but its purpose, character and market effect require scrutiny. Attribution is a condition in the proposed wording, not a substitute for the overall fairness assessment.

A proposal is not a current permission

Organisations may study the proposed factors to understand possible future policy, but should not label a current use “fair use under section 12A”. The section had not commenced on the status date used here. A current decision record should cite the existing Act, a licence, consent, a court order or another operative legal basis.

5. What the Constitutional Court decided in 2026

The case was Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, CCT 306/24, reported as [2026] ZACC 26.

The majority order drew important lines:

Proposed fair use survived the referral

The Court held proposed section 12A was not arbitrary, did not infringe the property right in section 25(1) of the Constitution and was constitutional within the scope of the President’s referral. It found that the named purposes and non-exhaustive factors gave the standard sufficient content. Market substitution helped guard against copying that would displace demand for the original.

The phrase “within the scope of the President’s referral” is important. The judgment did not immunise the clause from every future challenge. The Court stated that its decision would not stop an ordinary constitutional challenge based on the practical operation of an enacted provision.

Other targeted exceptions survived

The Court upheld proposed sections 12B and 12C within the referral’s scope. Those clauses covered targeted matters such as quotations, specified translations, personal copies, broadcast-related reproduction and temporary technical copies, with their own limits.

It also upheld proposed section 12D(6)–(9), dealing more narrowly with uses by people receiving instruction, specified state-funded research manuscripts, attribution and fair-practice conditions, and teaching illustration. Proposed sections 19B and 19C, concerning computer-program interoperability and specified library, archive, museum and gallery activities, also survived the referred objections.

Broad educational copying failed

The majority declared proposed section 12D(1)–(5) unconstitutional. Those subsections would have allowed educational and academic copying, course-pack and secure learning-environment uses, and in specified circumstances copying of a whole textbook.

The majority found that the provisions went further than necessary to advance the right to education. Its concerns included uncertainty about which institutions benefited, the breadth of “non-commercial” use, copying that could substitute for normal transactions, insufficient protection of the copyright market and the possibility of whole-book copying where price or availability conditions were met.

The Court did not hold that educational access is unimportant. It held that this particular drafting did not achieve a constitutionally acceptable balance. The second judgment disagreed on this issue, but the majority order controls the result.

Some royalty provisions were not decided on their merits

The Court held the referral concerning proposed sections 6A, 7A and 8A as a whole incompetent because the required section 79 sequence had not been met for the broader objections advanced. That procedural result is not a declaration that every aspect of those provisions is constitutionally valid.

6. What the judgment did not do

The judgment did not:

• insert proposed section 12A into the current Copyright Act;
• grant blanket permission for education, parody, AI, research or personal copying;
• repair proposed section 12D(1)–(5);
• decide every possible constitutional complaint about the Bill;
• determine whether a particular real-world use is fair;
• replace licences, assignments or permissions already needed under current law; or
• set a publication or commencement date.

This distinction should appear in any internal summary, board paper, education policy or creator communication. Saying “the Constitutional Court approved fair use” without explaining that the clause remains proposed is incomplete and can lead to an unlawful release decision.

For a wider rights analysis, the intellectual-property glossary distinguishes copyright from trade marks, patents and other protections. This page owns the reform and transition question rather than every underlying ownership or infringement issue.

7. A current-use decision record

Before copying, adapting, publishing, teaching with, archiving or distributing a protected work, record the following:

Do not enter “fair use” as the permission basis unless the legal text relied on is operative for the relevant conduct. If the basis is current fair dealing, identify the exact provision and explain both the listed purpose and fairness assessment.

The copyright ownership checklist helps organise creator, contract, licence and assignment records. For a wider rights review, use the IP protection checklist.

8. Practical steps for creators and rights holders

Creators, publishers, agencies, software businesses and collecting organisations should separate present enforcement from future reform planning.

For current licences and releases

• Keep dated source files, publication records, assignments and licence terms.
• Define permitted media, territory, duration, adaptations, sublicensing and educational or platform uses.
• Record how prices and licence options are communicated so a later market-substitution analysis has evidence.
• Review exceptions under the law applying on the date of use, not a policy summary drafted before the 2026 judgment.
• Preserve an infringement record before sending a demand or requesting a platform takedown.

For reform readiness

• Identify policies that incorrectly treat fair use as current law.
• Map licences and workflows that could be affected by a future section 12A.
• Prepare a documented, factor-based review process rather than a yes-or-no slogan.
• Train staff to escalate high-value works, whole-work uses, course packs, mass digitisation and uses that substitute for a sale or licence.
• Monitor the final text because Parliament may change provisions in response to the judgment.

9. Practical steps for educators, libraries and users

Education or public-interest purpose does not remove the need for a current legal basis.

• Identify whether the material is a literary, musical, artistic, audiovisual, sound-recording, program or other work.
• Check institutional licences, database terms, open licences and permissions first.
• Limit use to what the current permission or exception supports.
• Keep access controlled where the licence or legal basis requires it.
• Record the source, author, amount, audience and duration of access.
• Do not rely on proposed section 12D(1)–(5); the Constitutional Court declared those provisions unconstitutional.
• Treat the 2025 accessible-format reading-in as a defined exception with conditions, not a general education or disability label.

A school, university, library or archive planning systematic copying, digitisation, repository access or course packs should obtain focused advice on the exact works, users, licences and current provisions. The lawyer consultation preparation guide can help prepare the factual file for that review.

10. What to monitor before changing policy

Use a four-event gate:

1. Final text: Has Parliament or another authorised institution produced a revised final text that addresses the unconstitutional provisions?
2. Assent and signature: Has the President assented to and signed it?
3. Publication: Has the Act appeared in the Government Gazette?
4. Commencement: Is the entire Act in force, or are commencement dates, regulations or transitional provisions still outstanding?

Record direct official links for each event. A media report, stakeholder statement or old Bill PDF is not enough to prove commencement. If only some provisions commence, update policies clause by clause.

11. When legal review is needed

Obtain current, matter-specific advice where:

• the intended use depends on fair dealing or another exception rather than a licence;
• a whole work, textbook, database, photograph, film, recording or important extract will be used;
• course packs, virtual learning environments or institutional repositories are involved;
• proposed parody, satire, comment or AI use is treated as if section 12A already applies;
• a licence is unavailable, disputed or considered unaffordable;
• the use may replace sales, subscriptions or licensing revenue;
• accessible-format activity falls outside the clear terms of the current court order;
• several countries, online platforms or cross-border users are involved;
• a takedown, infringement demand or evidence-preservation issue has arisen; or
• the Bill’s assent, final wording or commencement status has changed since the date in this article.

Prepare the exact work, intended act, amount, purpose, audience, licence position and timeline before the consultation. You can then find a lawyer with the relevant intellectual-property experience.

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