A decade in the making: Constitutional Court rules on the Copyright Amendment Bill

The Constitutional Court’s 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 (CCT 306/24) [2026] ZACC 26 marks a significant moment in South Africa’s long-running copyright reform process.

The Copyright Amendment Bill (“CAB”) and Performers’ Protection Amendment Bill (“PPAB”) (“Bills”) have been the subject of extensive debate since their introduction into Parliament in 2017. The President had declined to accent to them initially in 2019, referred them back to Parliament, but despite amendments to the CAB in an attempt to address those concerns, the President remained unconvinced that some of the constitutional reservations had been fully accommodated. Accordingly, the President referred the matter to the Constitutional Court for a decision on their constitutionality under section 79(4)(b) and 84(2)(c) of the Constitution of the Republic of South Africa (“Constitution”), which judgement was handed down on 26 June 2026.

The controversy surrounding the Bills has always been twofold. On the one hand, supporters of the reform have argued that South Africa’s copyright regime is outdated and that the Bills would balance the interests of creators with broader constitutional rights such as education, equality and freedom of expression. On the other hand, opponents have raised concerns that some of the proposed limitations and exceptions, particularly the fair use provisions, weakened copyright protection and created legal uncertainty in South Africa’s creative industry.

The President’s referral on the substantive points sought, inter alia, the Constitutional Court’s determination on the constitutionality of Sections 6A, 7A, 8A, and 12A -D, 19B and 19C of CAB (and consequently the PPAB’s parallel provisions).

12A- D, 19B and 19C –Fair Use and exceptions framework

The President raised various concerns in respect of the proposed “fair use” and other exceptions to copyright infringement under these sections, including that the provisions might amount to an arbitrary deprivation of property, are in some instances incompatible with international treaties, create uncertainty, exploit the vulnerability of authors and sometimes go further than is necessary.

Section 12A, arguably one of the most contentious features of the CAB, moves South African law closer to an open-ended, factor-based fair use model, rather than a closed list for fair dealing purposes, to be applied on a case by case basis. S12B and C introduce specific copyright exceptions targeting public interest, such as freedom of expression.

The Constitutional Court held that section 12A is constitutional, not vague, can be reasonably applied and developed by the courts and is not arbitrary. Likewise, it found that S12B and C contained internal safeguards to protect against overbroad application, are limited in scope of potential deprivation and therefore, adequately justified.

S12D, which concerns the reproduction of copyright works for educational and academic purposes, limited to non-commercial practices, was found to be unconstitutional insofar as subsections 12D(1)–(5) are concerned on the basis that they constitute an arbitrary deprivation of property under S 25(1). The Constitutional Court held that these subsections go further than is necessary to vindicate the right to education, fail to specify which institutions are proper beneficiaries, lack clear parameters for the exercise of the exception, and disregard the legitimate interests and market of copyright owners. However, the Constitutional Court found subsections 12D(6)–(9) to be constitutional.

Section 19B provides general exceptions regarding the protection of computer programs. It permits a person with a right to use a copy of a computer program to observe, study or test the functioning of the program to determine the ideas and principles underlying it, provided this occurs while performing acts the user is already entitled to perform (loading, displaying, executing, transmitting or storing). The Constitutional Court found this provision is not an arbitrary deprivation of property since the copyrighted material is not permitted to be used commercially, but only to promote software interoperability.

S19C provides exceptions relating to education, research and the preservation of cultural heritage by libraries, archives and similar institutions. The Constitutional Court held that this section is not vague and it does not constitute an arbitrary deprivation of property, as the limitation it imposes on copyright owners is neither capricious nor unjustified, is rationally connected to the objective of realising the rights to education, research and preservation of cultural heritage, and are clear and specific so that users and copyright owners will know when copyright protections apply.

Sections 6A, 7A and 8A - Equitable Remuneration / Royalty-Sharing

These sections share a common purpose, namely, that where an author has assigned copyright in a work to another person or authorised that person to exploit the work, the assignee or licensee is required to pay the author equitable remuneration or a fair share of the royalty received from exploitation of the work. The remuneration is to be determined by written agreement between the parties or their collecting societies, failing which the matter may be referred to the Intellectual Property Tribunal.

The President’s concerns, in principal, were that the amendments could amount to retrospective and arbitrary deprivation of property as they apply to copyright works assigned prior to the new sections coming into force, reducing what copyright owners were previously entitled to receive from the fruits of their property. The Constitutional Court held that the referral of sections 6A, 7A and 8A as a whole was incompetent on the basis that the initial concerns raised by the President to Parliament narrowly related to 6A(7), 7A(7) and 8A(5), and were subsequently addressed by the Parliament. Therefore, the broader argument that subsection 6A(2) itself operates retrospectively was raised for the first time, which meant that the requirements of section 79 of the Constitution were not met. The Constitutional Court declined to entertain the referral of these provisions.

Where to from here?

In summary, save for the exception to infringement introduced by the use of copyright materials for educational and academic purposes (which is likely to be remedied by appropriate Parliamentary amendments), the court found the remaining provisions to be constitutional, overall favouring the “fair use” approach. While the judgment is a decisive step in the legislative journey of the CAB and PPAB, having cleared South Africa's copyright reform for enactment, the skirmishing over the terms of implementation remains. Fair use is, by design, a standard rather than a rule so it demands case-by-case adjudication. South African courts have virtually no domestic precedent on the concept. They will be building a jurisprudence from scratch, guided by the section 12A(b) factors but without the decades of accumulated case law that gives the US fair use doctrine its predictability. The road ahead remains to be determined, with prospects of prolonged periods of uncertainty both in terms of further challenges to the Bills as a whole, but also in how we shape the doctrine's contours.

Janine Thomas

Executive | IP & Innovation

jthomas@ENSafrica.com