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Dispelling Myths About Fair Use

By Sean Flynn

South Africa and other countries are currently considering proposals to convert from a “fair dealing” to a “fair use” user rights system. Some critics of the change fill their arguments with hyperbole without describing the facts about what is really at stake. This note attempts to dispel some common myths about fair use by describing what fair use is, and what is not.

What fair use is:

Fair use is an opening of fair dealing to include additional lawful purposes The proposed fair use provision is an opening of South Africa’s existing fair dealing right. Both fair use and fair dealing are general exceptions that apply a common test of what is “fair” to a host of different purposes (e.g. criticism, etc.). Fair use is different mainly in including words “such as” before its list of permitted purposes. The effect is to make the list or permissible purposes of the use open to potentially any purpose. But the use still must be fair. The openness of fair use enables innovation.

A key value of opening of the purposes for fair use is to permit new technologies that cannot be foreseen by the legislator. When the first copyright laws were written they did not imagine the VCR, much less the Internet. Flexible fair use systems have been able to accommodate technological change by permitting a new technology developer to know their use can be defended from any challenge as long as long it meets the test of fairness.

Fair use promotes human rights
Copyright laws with insufficient exceptions for modern digital uses conflict with rights to free expression, education and access to culture.

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