Prof. Sean Flynn Submits Comment on South Africa's Copyright Amendment Bill as Lead Counsel for the Global Network on Copyright User Rights
Aneeta Mathur-Ashton
July 9, 2021
Sean Flynn, Director of American University’s Program on Information Justice and Intellectual Property, has submitted comments on South Africa's Copyright Amendment Bill to the Parliament's Portfolio Committee on Trade and Industry. He submitted the comments in his capacity as Lead Counsel for the Global Network on Copyright User Rights, an association of over 100 copyright academics from over 30 countries who conduct research and offer technical assistance to governments and stakeholders on the reform of copyright limitations and exceptions to promote the public interest. Many of the Network's members collaborated on the comments, including Patricia Aufderheide, Carys Craig, Niva Elkin Koren, Christophe Geiger, Lucie Guibault, Peter Jaszi, Ariel Katz, Thomas Margoni, João Pedro Quintais, Allan Rocha, Matthew Sag, Pam Samuelson, Arul George Scaria, Tobias Schonwetter, Martin Senftleben, and Peter Yu.
With regards to Clause 13, section 12A of the bill, Professor Flynn wrote: “In our view, the proposed fair use provision combined with the specific list of exceptions provides South Africa the “best of both worlds” combining openness and predictability. The open fair use exception makes the exceptions future-proof. It permits the law to adapt to new uses, technologies, and purposes which may not be anticipated in the specific exceptions. The list of specific exceptions in Section 12B provides a higher degree of predictability for the set of uses long authorized in South Africa copyright law.”
With regards to compliance with international law, Professor Flynn argued that the hybrid approach to exceptions is “fully compliant with international law.”
“The so-called 'three step' test does not prohibit open general exceptions that operate through case by case application of a specifically delineated balancing test. At least 11 countries have similar provisions in their law and none have been challenged.”
More information regarding the Global Network on Copyright User Rights can be found here.