Copyright law and freedom of expression in South Africa

Abstract

Historically there has been little discussion of the relationship between copyright and freedom of expression in South Africa, particularly when compared with the more robust debate in the US on the relationship between copyright and the First Amendment. The claim, that there is indeed some tension between the imperative of copyright law and the core of the right to freedom of expression, has been ignored for a variety of intuitions and reasons. This article acknowledges the conflict between copyright law and freedom of expression right in South Africa; it recognises the tension and conflict of the fundamental rights that is evident in the two case laws discussed. The author laments the absence of copyright provisions under the Bill of Rights of the Constitution as laid down in the International Covenant on Economic, Social and Cultural Rights (CESCR); a binding treaty that South Africa ratified. It is argued that the courts’ reliance on commercial loss leads them to draw quick conclusions which end up resulting in courts failing to take into account the Constitutional dimension of the copyright law/freedom of expression intersection. It is therefore concluded that a proper application of the fair dealing defence can balance the interests of copyright owners and users because it permits the unauthorised appropriation of protected expressions.

Keywords: Bill of Rights; CESCR; conflict; copyright; fair dealing; freedom of expression