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South Africa is in the midst of a major overhaul to its copyright system, in particular the "limitations and exceptions" that are the escape valves within copyright for such core human rights as free expression and self-determination.
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Broadly speaking, there are two approaches to copyright exceptions: "enumerated uses" (lists of things you're allowed to do) and "frameworks" (criteria that judges can use to assess whether a use should be allowed).
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Examples of the "enumerated uses" system are the UK fair dealing system, or the EU Copyright Directive's guarantee of a "criticism" and "parody" exemption.
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While the "frameworks" approach is in use in the US through "fair use," as well as in the copyright systems of Israel, South Korea and other countries.
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Both approaches have strengths and weaknesses. Enumerated exemptions provide certainty by listing things you are absolutely allowed to do. Frameworks are future-proof, allowing courts to reason about uses that were not technologically possible when the law was created.
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To its credit, South Africa adopted both: a set of enumerated exemptions to reflect the state of the art, and a straightforward importation of the US fair use "four factor" framework for new uses.
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And to its shame, the US Trade Rep took the bizarre position that South Africa was not ALLOWED to have fair use, claiming that this would violate SA's international trade obligations under the Berne Convention, TRIPS, the WCT, etc.
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This is obviously wrong. For one thing, the US itself is party to all these same treaties, and it has never faced enforcement action for its fair use rules. If fair use was incompatible with these treaties, it would have faced a challenge.
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But despite both domestic and overseas NGOs pointing this out, SA President Cyril Ramaphosa has sent the copyright bill back to parliament, having stripped it of BOTH the exemptions and fair use, claiming it would violate the Berne Convention.
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Yesterday, @EFF sent an open letter to the Parliament and the President with extensive legal citations to show that South Africa will not be in breach of its international obligations if it creates a fair use system.
https://www.eff.org/files/2020/08/17/south_africa_copyright_intervetion_by_electronic_frontier_foundation.pdf
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https://www.eff.org/files/2020/08/17/south_africa_copyright_intervetion_by_electronic_frontier_foundation.pdf
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As I explain in the accompanying blog post, exemptions for education, research, archiving, libraries and museums are critical to the human rights of the South African people and the national and economic sovereignty of the South African nation.
https://www.eff.org/deeplinks/2020/08/open-letter-government-south-africa-need-protect-human-rights-copyright
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https://www.eff.org/deeplinks/2020/08/open-letter-government-south-africa-need-protect-human-rights-copyright
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