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Toward a South African Fair Use Standard

By: Taysir Awad

In the midst of the twentieth century, a South African musician and composer named Solomon Linda wrote “Mbube.” “Mbube” never prospered to the heights reached by its foreign progeny, “The Lion Sleeps Tonight.” Disney accrued millions of dollars capitalizing on Linda’s

magnum opus, while Linda died a pauper. In the aftermath, the post- colonial Republic of South Africa remains scarred and reminiscent of the abject atrocities of Western encroachment. Thus, when the American–incubated doctrine of fair use, a provision that allows for the usage of copyrighted works for an infinite number of purposes, introduced itself at the doors of the National Assembly of Parliament, it was to no one’s surprise that the South African public strongly resisted the doctrine which they feared would expose their works to

Western exploitation. As a result, President Ramaphosa reserved the fair use doctrine, and referred the Bill back to parliament for breach of international law and deprivation of the constitutional right of property.

This Article examines these two postulations, inter alia, and confutes the omnipresent misconceptions of fair use that have been promulgated throughout South Africa by several competing interest groups. It begins by delving into the history of copyrights in South Africa all the way to the introduction of the fair use doctrine in 2015. The Article then discusses the context revolving around the introduction of fair use, which portrays the numerous perceptions projected by the South African copyright industry, the academic sector, tech companies

and conglomerates, the print disabled, and US and European delegates. Those that impugn the doctrine conjecture that it is in breach of the Berne Convention’s Three-Step Test, deprives authors of their constitutional right to property, is incongruous with other specific copyright exceptions, and is incoherent and uncertain. This Article proves that these postulations are baseless and stem exogenously from competing copyright industries and alliances to generate a dubiety vis-à-vis its legal status. This dubiety is devised to repel the proliferation of he fair use doctrine globally, while it remains intact and unimpinged domestically. This Article concludes that South Africa should base its legislative affairs solely on its own interests, impervious to the cynical perspectives of exogenous nations and alliances that could care less about its affluence or the welfare of its people.


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