On 26 June 2026, South Africa’s Constitutional Court ruled on the South Africa Copyright Amendment Bill: the new US-style fair use exception (section 12A), the software interoperability exception (section 19B) and most other new exceptions are constitutional, but the broad educational exceptions in section 12D(1) to (5) are not. Because part of the text failed, the Bill cannot be signed as it stands and goes back to Parliament. This matters to publishers, broadcasters, software vendors and any company licensing content into South Africa.
Key takeaways
- The Court upheld fair use (section 12A), the quotation, personal-use and temporary-copy exceptions (12B and 12C), the software exception (19B) and the library and archive exception (19C).
- It struck down section 12D(1) to (5), the wide educational and academic copying exceptions, as an arbitrary deprivation of property.
- It declined to rule on the royalty-sharing provisions (sections 6A, 7A and 8A) because the President’s referral on them was procedurally incompetent.
- Until Parliament acts and the Bill is enacted, the Copyright Act 98 of 1978 and its narrower “fair dealing” rules still apply.
What did the Constitutional Court decide?
The case (Ex parte President of the Republic of South Africa, CCT 306/24, [2026] ZACC 26) came from a presidential referral. Parliament passed the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB) in March 2019. In June 2020 the President sent them back with constitutional reservations; Parliament resubmitted the CAB on 29 February 2024, and on 10 October 2024 the President asked the Court to decide, according to the Court’s media summary of 26 June 2026.
| Provision of the CAB | What it covers | Outcome |
|---|---|---|
| Sections 6A, 7A, 8A | Royalty-sharing rights for authors | Referral incompetent: not decided |
| Section 12A | General fair use exception | Constitutional |
| Sections 12B and 12C | Quotation, translation, broadcasting, personal use, temporary reproduction | Constitutional |
| Section 12D(1)-(5) | Broad educational and academic copying | Unconstitutional |
| Section 12D(6)-(9) | Narrower academic uses | Constitutional |
| Section 19B | Computer programs: interoperability | Constitutional |
| Section 19C | Libraries, archives, museums and galleries | Constitutional |
The same outcomes apply to the parallel provisions of the PPAB. The majority judgment was written by Mhlantla J; Majiedt J dissented only on section 12D(1) to (5), which he would have upheld. The Court also stressed that its findings are limited to the President’s reservations, so the upheld sections can still be challenged once enacted.
How does fair use work under section 12A?
Section 12A, as reproduced in the judgment, says that fair use of a work for purposes “such as” research, private study or personal use, criticism or review, reporting current events, scholarship and teaching, comment, parody, satire, pastiche, preservation by libraries and archives, and public administration does not infringe copyright. Whether a use is fair depends on all relevant factors, including:
- the nature of the work;
- the amount and substantiality of the part used;
- the purpose and character of the use, including whether it serves a different purpose and whether it is commercial or non-profit;
- the substitution effect on the potential market for the work.
The source and the author’s name must be mentioned where they appear on the work. The Court held that this standard is not vague and that the limitation it imposes on rights holders is justified. As the Spoor & Fisher commentary of 1 July 2026 notes, it also rejected the argument that fair use breaches the Berne Convention’s three-step test.
What does the software exception in section 19B allow?
Section 19B lets a lawful user observe, study and test how a program works while doing what it is entitled to do (loading, running, storing). It also allows reproducing and translating code when that is indispensable to achieve interoperability, the information is not readily available and the work is confined to the parts needed. The information cannot be used to build a substantially similar program. The Court found the exception limited and in the public interest.
Why was the South Africa Copyright Amendment Bill sent back to Parliament?
The Court held that section 12D(1) to (5) went further than needed to serve the right to education, shifted onto authors and publishers the State’s duty to fund learning materials, and conflicted with the three-step test in Article 9(2) of the Berne Convention. With that part found unconstitutional, the Bills cannot be enacted in their current form. Parliament must now decide how to deal with section 12D, and the timing is open.
What this means for your business
- Do not change South African practice yet: the 1978 Act still applies.
- Educational publishers have the clearest gain: the widest copying exceptions are gone, though the narrower ones in 12D(6) to (9) survive.
- Media and platform businesses should prepare for fair use: more flexible, but less predictable than a closed list.
- Software companies should review licences and technical documentation in light of section 19B and the rule that interface specifications are not protected.
If you license catalogues, software or audiovisual content into South Africa alongside Europe and Latin America, our copyright and digital works team can review your contracts against the new exceptions before they apply.
Where companies get this wrong
- Treating the ruling as the new law. It is a decision on a Bill; nothing changes until Parliament acts and the President signs.
- Assuming fair use works as in the United States. South African courts will apply section 12A’s own wording and factors.
- Drafting one licence for every African market. Exceptions and collective management differ by country, and Nigeria, Kenya or Morocco will not follow South Africa’s text.
- Ignoring the moving parts: the royalty provisions and a rewritten section 12D may still change contract economics.
Coordinated advice keeps the South African position aligned with the rest of a cross-border licensing structure; see our licensing and IP disputes service.
Frequently asked questions
Is fair use now law in South Africa?
Not yet. The Constitutional Court found section 12A of the Copyright Amendment Bill constitutional on 26 June 2026, but the Bill as a whole cannot be signed because section 12D(1) to (5) failed. Until Parliament deals with it and the amended Act enters into force, the Copyright Act of 1978 and its fair dealing provisions continue to apply.
What did the Court strike down?
Only subsections 12D(1) to (5), the broad exceptions for educational and academic copying. The majority found they were an arbitrary deprivation of property, went beyond what the right to education requires and conflicted with the Berne three-step test. The narrower academic exceptions in 12D(6) to (9) were upheld.
Does the ruling affect software licensing?
Potentially. Section 19B, upheld by the Court, permits studying how a program works and reproducing code where indispensable for interoperability, under strict conditions. Once it is enacted, vendors should check that licence restrictions on reverse engineering remain consistent with it.
Can IP Global Guard review our content licences for South Africa?
Yes. We review licensing and distribution agreements, map the impact of the new exceptions and coordinate qualified local correspondents in South Africa, together with your European and Latin American portfolio, from a single point of contact.
How IP Global Guard can help with South African copyright reform
IP Global Guard, the IP services line of META Channel Corporation Limited, manages copyright, licensing and enforcement across more than 25 jurisdictions in Europe, Latin America and Africa with one strategy and one billing relationship; see our coverage in Africa and the corridor.
Tell us which works, catalogues or software you license into South Africa and under which agreements. We will flag the clauses to revisit and track the Bill’s return to Parliament for you. Contact our copyright team.
This article is general information, not legal advice, and reflects the position on its publication date.
Sources
- Constitutional Court of South Africa, media summary, CCT 306/24 (26 June 2026)
- Constitutional Court of South Africa, judgment [2026] ZACC 26 (26 June 2026)
- Constitutional Court of South Africa, case page CCT 306/24
- Spoor & Fisher, Copyright Amendment Bill: Constitutional Court judgment (1 July 2026)
- SAnews, President Ramaphosa refers two Bills to ConCourt (15 October 2024)
