[The IPKat] [Guest post] Long walk to copyright reform #12: The Constitutional Court clarifies the constitutional anatomy of South Africa's copyright exceptions

[Eleonora Rosati]

[Guest post] Long walk to copyright reform #12: The Constitutional Court clarifies the constitutional anatomy of South Africa's copyright exceptions

 Eleonora Rosati Thursday, July 23, 2026 - Chijioke Okorie, Constitutional Court, copyright, Ex parte President of the Republic of South Africa, Guest post, South Africa

The IPKat has received and is pleased to host the following contribution by former SpecialKat Chijioke Okorie (University of Pretoria) on the recent decision of the Constitutional Court of South Africa concerning that country's proposed copyright reform. Here's what Chijoke writes:

Long walk to copyright reform #12: The Constitutional Court clarifies the constitutional anatomy of South Africa's copyright exceptions

by Chijioke Okorie

Last month, on June 26th 2026, South Africa's Constitutional Court issued its judgment in Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. The referral related to the constitutionality of substantive provisions of the Copyright Amendment Bill (CAB) and the Performers' Protection Amendment Bill (PPAB), introduced in Parliament in 2017.

In its decision, the court was asked to consider the constitutionality of the following provisions of the
Copyright Amendment Bill: sections 6A, 7A and 8A on equitable remuneration; 12A (fair use exception, 12B (quotation exception); 12C (exception relating to temporary reproduction and adaptation), 12D (exception relating to educational and academic activities), 19B (exceptions concerning computer programs) and 19C (General exceptions regarding protection of copyright work for libraries, archives, museums and galleries) of the CAB.

Apart from sections 6A, 7A and 8A where the court unanimously held the referral incompetent (the President's problems with those provisions were never put to Parliament, and surfaced for the first time before the Constitutional Court), and section 12D(1)-(5), which the majority struck down as unconstitutional (Majiedt J dissenting), every provision the President took issue with was held constitutional.

Much of the judgment concerned matters of constitutional law, including what the ruling practically means and what happens next. South Africa has no blue-pencil rule for this sort of situation, so the court cannot sever and save the provisions it found constitutional; there is no mechanism to let the parts the President did not object to, and the parts the ConCourt upheld, pass into law on their own. Instead, the ball is now in Parliament’s court (see what I did there? ☺), since there is no complete Bill for the President to assent to. Those constitutional questions are not the subject of this post.

At its core, the referral is a constitutional law matter about copyright and performers’ rights. But both the judgment and more importantly, the reasoning behind it matter a great deal for copyright exceptions as part and parcel of the copyright system (chapter 7), because the court clarified key aspects of the constitutional anatomy of various forms of copyright exceptions. Two points stand out. First, the US-style fair use provision proposed in section 12A of the CAB is, on its substantive reading, constitutional; whether it turns out unconstitutional in effect depends on the context and circumstances of a given case. Second, the choice between "fair use" or "fair dealing" is just nomenclature: what matters is how an exception actually works in application, not the name it is called.

Let's break down the key sound bites from the Constitutional Court.

Nomenclature is nothing; effect and implication are everything

On the proposed fair use exception (Section 12A), the court noted that the exception has, in itself, many aspects to commend it, and those aspects make it constitutional. Interestingly, the court agreed with a point I had made here: that some countries use "fair dealing" in name but apply it in a far more expansive, open-ended (fair use style) way, as Canada does. The court cited my work here (see para 114) for exactly that proposition: nomenclature is nothing; effect and implication are everything.

The fair use purposes in section 12A(a) are open-ended: the provision permits use “for purposes such as” research, criticism, and education, and that “such as” signals a non-exhaustive list. In Long Walk to Copyright Reform (Pt 3), the point was made that: even with an open-ended list, it is the enumerated purposes that “contextualize the non-listed uses and aid their acceptance or rejection within that list per the ejusdem generis rule of interpretation”. In other words, the purposes are open but not unbounded and a court will admit only purposes of the same kind as those already listed. The Constitutional Court confirmed this position in para 132 holding that the phrase “such as” can “only have the effect of including other purposes not yet contemplated by the Legislature but which share attributes similar to the named purposes”.

“Constitutional” now does not mean bulletproof forever

Also crucial: even though the court did not cite the Blind SA v Minister of Trade, Industry and Competition and Others on this point, it reiterated that individual parties (and Parliament as well) remain free to approach the Constitutional Court to challenge any exception held constitutional, based on its actual implication and effect on them. That is exactly what Blind SA did with respect to section 13 of the Copyright Act of 1978, complete with concrete examples, and the court agreed with them. As the ConCourt put it: 

The ordinary avenues of constitutional challenge remain available once the Bill is enacted and operative. Sections 80 and 122 of the Constitution permit members of the Legislature, once an Act has been signed, to approach this Court for an order declaring all or part of it unconstitutional. Any other person retains the ordinary right, under sections 38 and 172(1)(a), to bring a substantive constitutionality challenge to the enacted legislation and to seek just and equitable relief in the High Court (subject to confirmation by this Court under section 167(5), where applicable), based on the practical and evidentiary impact of the legislation as applied. [para 198]

Fair dealing jurisprudence is not a waste even when fair use is adopted

Having held all that, the Court also settled a point that has divided commentators for some time: is fair dealing jurisprudence still relevant once you adopt fair use? For South Africa at least, the Constitutional Court put the doubt to rest - fair dealing jurisprudence does not become wholly unusable just because fair use is adopted (para 134). On this, the court made the point that, while fair use is distinguishable from the old fair dealing scheme, the accumulated fair dealing jurisprudence does not fall away with it and, in any case, very few South African decisions substantively engage section 12 fair dealing (para 134). This aligns with the approach I took in this paper (p.22), where I read the proposed fair use exception through existing fair dealing case law and found it "both retains and strengthens" that interpretation rather than discarding it.

Comment

The Constitutional Court judgment in Ex parte President of the Republic of South Africa is a major development in South African copyright reform and the copyright exception framework, and it has already drawn a wide range of commentary from rights groups, and civil society organisations. I had already made the point, in my paper The fair dealing/fair use landscape for artificial intelligence innovation and computational research in Africa (open access), that not much would change for this general exception whether or not South Africa adopts fair use. What would change is that we would get more enumerated instances instead of a closed list - and the court agreed. See paras 109-114 of the judgment. We would also get statutorily listed fairness factors for courts to weigh, rather than the current regime, where those factors are broad and left to judicial discretion.

Fair use and Fair Kat

If readers are wondering where things stand now, here is my read. First, the Copyright Act of 1978 remains the substantive, applicable law. Second, the ball is in Parliament's court to decide whether to strip out the bits held unconstitutional, finalise the Bill, and send it to the President for signature. That to me is the path of least resistance: given the Constitutional Court's ruling on those provisions, the President cannot raise constitutional reservations about them again. But any deviation such as trying to slip in a revised version of the unconstitutional provisions risks the President raising fresh reservations about the revised text and bouncing the Bill back to Parliament, dragging the already long road to copyright reform out even further. That is the danger. Whether it even makes sense to pursue reform piecemeal is another question. And there is a third option: testing whether the provisions held constitutional can carry the weight of the exception held unconstitutional, without adding anything new, though that is a different question altogether.

To use the ConCourt’s judgment to clarify a few aspects left open in my paper on fair dealing/fair use and African NLP “The fair dealing/fair use landscape for artificial intelligence innovation and computational research in Africa” (open access):

• The fair use/fair dealing split is about substance, not the label. I made this point using Nigeria, which keeps the "fair dealing" name but operates an open, fair-use-style exception (p. 22) and the Canadian courts' “large and liberal” reading of fair dealing in CCH and SOCAN v Bell (pp. 12–13). The Constitutional Court’s judgment settled the issue: fair use and fair dealing “are not to be seen as completely distinct simply because of their terminology” but “lie on two ends of a continuum”, and Canada’s fair dealing regime in practice operates “more akin to a fair use regime” (paras 113-114 of the judgment).
• Switching to fair use retains and does not discard the existing fair-dealing interpretation and case law. My whole analysis builds the fair use reading on fair dealing jurisprudence and concludes the shift “both retains and strengthens the interpretation proffered above” (p. 22), treating the outcome as “fair dealing (or fair use when South Africa's Copyright Amendment Bill becomes law)” (p. 23). The Court agreed that fair use “does not thereby become wholly unusable” as against fair dealing jurisprudence, and there is scant SA fair dealing case law to lose in any event (para 134); the claim that “fair use” is undefinable and unusable next to “fair dealing” is “without merit” (para 135).
• The open-ended lists of purposes and factors are a workable feature, not a fatal flaw. I argued that the CAB's non-exhaustive list of purposes and factors gives a statutory basis to treat "not just research but a plethora of activities" as fair, and to weigh all relevant factors (p. 22). The Constitutional Court read “such as” and “including but not limited to” as deliberate flexibility for uses “not yet contemplated”, still anchored to the exception's public-benefit purpose. (paras 131-133).
• Fair use shifts South Africa from “pick and choose” discretion to mandatory, listed fairness factors. I noted that South Africa currently has “leeway to pick and choose relevant fairness factors”, but “a mandatory consideration of explicitly listed factors will apply should the [CAB] become law”, with the Bill's four factors mirroring Nigeria's s20(1)(d) and the Canada/US case-law factors (pp. 22-23; factors discussed pp. 14-15). The Court confirmed s12A(b) provides for exactly that framework of factors and upheld it (para 133).

The court also gave some pointers on how the unconstitutional bits of the proposed section 12D might be revised, so Parliament has that guidance from the judgment. But for now, my position is that the judgment is helpful jurisprudence for applying the existing fair dealing exception: the relevant factors are already there and have been judicially considered, along with how to apply the exception in a way that is mindful of the constitutional dimensions and the tension between copyright as a property right and other constitutional rights. The minority judgment disagreed with the majority on the constitutionality of some parts of the proposed section 12D, but this post focuses on the majority.

P.S: I have followed the CAB on its long, winding journey from the then Department of Trade and Industry to Parliament and the National Council of Provinces (NCOP) to the President and back to the Parliament and NCOP, to the President again and finally to the Constitutional Court, in a series I titled “Long walk to copyright reform” which ran mostly on The IPKat Blog.

Also P.S.: Together with the techie members of the Data Science Law Lab (DSLL) and Data Science for Social Impact, I built an interactive tool tracking the Bill's stakeholder history. It pulls together 176 formal submissions made to Parliament between 2017 and 2023, across three tools:

• Interactive Stakeholder Map showing who actually submitted, what kind of organisation each is, where each stood, and how the sides cluster.
• Issue Position Matrix showing which provisions divide the creative economy and where each stakeholder group stood, colour-coded by dominant stance and clickable for the full history behind every cell.
• Searchable Database showing 176 written submissions on the CAB and PPAB since 2017, searchable and filterable by name, organisation, or issue, with a full record behind each result.

Do you want to reuse the IPKat content? Please refer to our 'Policies' section. If you have any queries or requests for permission, please get in touch with the IPKat team.