The compliance of the fair use clause in the South African copyright amendment bill with the three-step test and the constitution of South Africa
Bibliographic record
Abstract
Abstract This contribution distinguishes fair dealing in the Copyright Act from fair use in the Copyright Amendment Bill to assess the differences between them, given the contestation around the proposed fair use clause in South Africa. The contribution then considers whether the fair use clause in the Bill complies with South Africa’s international obligations encapsulated in the three-step test of the Berne Convention and the Agreement on the Trade-Related Aspects of Intellectual Property Rights. Furthermore, this paper analyses whether the proposed fair use clause complies with the Constitution of the Republic of South Africa. Relying on the World Trade Organization cases, which are USA—section 110 (5) of the US Copyright Act, and Canada—Patent Protection of Pharmaceutical Products, the paper finds that the proposed fair use clause in the Copyright Amendment Bill falls short of the three-step test, noting further that the Bill does not include a provision requiring a limitation of copyright to comply with the three-step test. Regarding the constitutionality of the impugned fair use provision, this contribution finds that fair use amounts to an arbitrary deprivation of copyright in protected works, especially the rights of adaptation and reproduction, particularly because the proposed fair use clause does not pass muster in terms of the three-step test. This contribution concludes that fair use is unconstitutional as it enables the deprivation of copyright without the law of general application and compensation, contrary to the Constitution of the Republic of South Africa and indeed as required by Article 9.2 of the Berne Convention and Article 13 of the Agreement on the Trade-Related Aspects of IP Rights.
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How this classification was reachedexpand
Full frame distilled prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. Learned from the 10,348 direct Codex labels and 10,348 direct Gemma labels. Candidate is the union of thresholded teacher heads; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels or direct frontier model labels.
Codex and Gemma teacher scores by category
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.003 | 0.008 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.000 | 0.000 |
| Bibliometrics | 0.000 | 0.001 |
| Science and technology studies | 0.001 | 0.003 |
| Scholarly communication | 0.001 | 0.001 |
| Open science | 0.001 | 0.000 |
| Research integrity | 0.000 | 0.001 |
| Insufficient payload (model declined to judge) | 0.000 | 0.000 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one teacher head, not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".