The Constitutional Court, on 26 June 2026, issued a landmark judgment on the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB). This follows the President Cyril Ramaphosa’s referral of both Bills to the Court, wherein he raised reservations about their constitutionality. The President’s reservations related primarily to sections 6A, 7A, 8A, 12A to 12D, 19B and 19C. The Court’s findings on the CAB apply equally to the corresponding provisions of the PPAB.
Sections 6A, 7A and 8A of the Copyright Amendment Bill
Sections 6A, 7A and 8A introduce royalty-sharing rights for authors and performers, even where copyright has been assigned to a third party. Critics argue that these sections could affect existing contracts and could constitute an arbitrary deprivation of property. However, the Constitutional Court did not rule on these provisions, finding that procedural defects in the President’s referral prevented it from considering them.
Section 12A – Fair Use
The introduction of a fair use copyright exception is perhaps the most contested aspect of the CAB. Unlike South Africa’s current fair dealing system, which permits unauthorised copyright use only in specified circumstances, fair use provides a more flexible framework. It allows the use of copyright works without the owner’s permission where the use is considered fair, taking into account factors such as the purpose of the use, the nature of the work, the amount used and its effect on the market for the original. While fair dealing offers greater legal certainty as to the uses that may fall within the exception, fair use provides greater flexibility in determining whether a particular use is justified in the circumstances.
The President’s initial concerns regarding section 12A centred on the lack of an opportunity for public comment following substantial amendments, as well as whether the fair use exception violated the “three-step test” set out in the Berne Convention for the Protection of Literary and Artistic Works and other treaties. The Berne Convention is an international copyright treaty which establishes minimum standards for works that member states are required to observe. Under this test, statutory copyright exceptions must relate to specific cases, must not conflict with normal exploitation of a work, and must not unreasonably prejudice the legitimate interests of copyright owners.
In essence, the President and certain amici curiae (friends of the court) contended that the fair use exception was vague and overly broad, and that it would weaken the protection currently afforded to copyright owners when compared to the existing fair dealing regime.
The Constitutional Court rejected these arguments. It found that section 12A clearly defines the instances in which the exception applies, and introduces sufficient constraints through a list of factors to be considered when determining fair use. The Court further noted that fair use exceptions have been adopted in several other jurisdictions without successful international legal challenge, suggesting that fair use can be compatible with the Berne Convention.
The Court ultimately held that section 12A was not vague, arbitrary or unconstitutional, and that fair use serves an important balancing function between the interests of copyright owners and the public’s rights to freedom of expression and education.
Addressing the argument that fair use would create uncertainty when compared to fair dealing, the Court noted that South Africa’s current case law on fair dealing remains limited, suggesting that a lack of developed jurisprudence should not be used as a basis to challenge fair use. The Court expressed confidence that the fair use framework could be reasonably applied and developed by the courts in future.
Sections 12B and 12C
Section 12B provides a list of specific exceptions, such as for quotation and translation, while section 12C addresses temporary reproduction and adaptation. The Court held that these sections were constitutional as they expressly state the purpose of each exception, include sufficient limitations (such as requirements for fair practice, attribution, and restrictions against commercial use), and any resulting deprivation of property would be confined to specific circumstances.
Section 12D
Section 12D provides educational and academic exceptions to copyright infringement. In particular, concerns were raised regarding sections 12D(1) to 12D(5) , as they would grant educational institutions broad powers to reproduce copyright works without the owner’s consent, including, in certain circumstances, the reproduction of entire textbooks.
The President argued that this section was too broad and vague, and failed to meet the three-step Berne Convention test requirements. Amici further submitted that the section does not recognise that educational publishing is a legitimate commercial activity, and that users could unfairly rely on these exceptions where they disagreed with licence terms.
The Court agreed that sections 12D(1) to 12D(5) were overly broad, vaguely defined and would negatively impact copyright owners. Importantly, the Court emphasised that while education is a constitutional right, it is the State’s duty to fund that right – not that of private authors whose works are the product of legitimate commercial activity. Therefore, these subsections were found to constitute an arbitrary deprivation of property and were declared unconstitutional. However, sections 12D(6) to 12D(9), which addresses narrower educational and academic exceptions, including the incorporation of portions of copyright works in assignments, portfolios, theses and dissertations, and the making available of certain publicly funded research manuscripts through open licences or open-access institutional repositories, were found to be constitutional, as they were appropriately limited and included safeguards relating to attribution, proportionality and fair practice.
Sections 19B and 19C
Section 19B provides exceptions for computer programs, permitting users to study and test programs to understand their underlying principles, and to reproduce code where necessary for interoperability. The Court found this section constitutional noting that the exceptions are sufficiently limited to information necessary for interoperability, and not the commercial value or protected expressions of the programs.
Section 19C provides general exceptions for libraries, archives, museums and galleries. The Court found this section constitutional as the use of copyright works by these entities is largely confined to non-commercial, educational or historical purposes, and that the exceptions are clear as to when they may be relied upon.
Take-Aways
The Constitutional Court has accepted that copyright is a form of private property which is entitled to constitutional protection in terms of section 25 of the Constitution. Section 25, commonly referred to as the property clause, protects against the arbitrary deprivation of property. In this context, the concern was that copyright, as a form of property, should not be limited by copyright exceptions in a manner that was overly broad, irrational or insufficiently justified, as this would constitute a form of arbitrary deprivation of property.
In light of the findings of unconstitutionality, the Copyright Amendment Bill and the Performers’ Protection Amendment Bill will be returned to Parliament for reconsideration and amendment.
The Court’s enquiry was confined to the specific reservations raised by the President through the referral process. It does not amount to a general order of constitutionality in respect of the Bills as a whole, nor did it require the Court to consider provisions that were not properly before it. Where the Court found certain provisions to be constitutional, those findings were made in the abstract, on the basis of the text of the Bills and within the limited scope of the President’s referral, and do not concern the effect of the practical implementation of the Bills. The Court therefore emphasised that further constitutional challenges remain available once the Bills are enacted.
While the Constitutional Court’s judgment marks an important development, it falls short of a ruling on the constitutionality of the Bills in their entirety, nor does it clarify how the amendments will operate in practice once enacted. Accordingly, legal uncertainty therefore remains in several respects, and the practical impact of the new regime has yet to be tested. Consequently, further court challenges may be brought against the Bills once they are enacted.
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Read the original publication at Spoor & Fisher
