South Africa copyright reform is back in Parliament’s hands. On 26 June 2026 the Constitutional Court upheld fair use and most of the new exceptions in the Copyright Amendment Bill, but struck down the broad educational exceptions in section 12D(1) to (5), so the Bill cannot be signed as passed. In early October 2026 Parliament had not yet published a timetable to fix it. This update explains what must change, what is already settled and what it means for publishers, broadcasters, software vendors and anyone licensing content into South Africa.
Key takeaways
- Parliament must deal with section 12D(1) to (5), the wide educational copying exceptions, and the parallel provisions of the Performers’ Protection Amendment Bill.
- Fair use (section 12A), the exceptions in sections 12B, 12C and 12D(6) to (9), and sections 19B and 19C were found constitutional within the scope of the President’s referral.
- The royalty-sharing provisions in sections 6A, 7A and 8A were not decided, because the referral on them was incompetent.
- Until an amended Act is signed and in force, the Copyright Act 98 of 1978 still governs licences in South Africa.
Why is South Africa’s copyright reform back in Parliament?
The Bill reached the Court through the presidential referral procedure in section 79 of the Constitution. Parliament passed the Copyright Amendment Bill (CAB) and the Performers’ Protection Amendment Bill (PPAB) in March 2019; the President sent them back in June 2020; Parliament resubmitted the CAB on 29 February 2024; and on 10 October 2024 the President asked the Court to rule, according to the Court’s media summary of 26 June 2026.
Under section 79(5) of the Constitution, the President must sign a referred Bill if the Court decides it is constitutional. Because part of this Bill failed, that obligation does not arise. As Spoor & Fisher noted on 1 July 2026, both Bills return to Parliament for reconsideration and amendment. Writing for The IPKat on 23 July 2026, Chijioke Okorie put it simply: “The ball is now in Parliament’s court”.
What exactly must Parliament fix?
The judgment in CCT 306/24, [2026] ZACC 26, sets out the outcome provision by provision. Paragraph 8 of the order applies the same results to the matching sections of the PPAB.
| Provision of the CAB | What it covers | Court’s outcome | What Parliament has to do |
|---|---|---|---|
| Section 12D(1)-(5) | Broad copying for educational and academic activities | Unconstitutional: arbitrary deprivation of property | Delete or redraft |
| Section 12D(6)-(9) | Narrower academic uses | Constitutional within the referral | No change required |
| Sections 12A, 12B, 12C | Fair use; quotation, personal use, temporary copies and other specific exceptions | Constitutional within the referral | No change required |
| Sections 19B, 19C | Software interoperability; libraries, archives, museums and galleries | Constitutional | No change required |
| Sections 6A, 7A, 8A | Authors’ equitable remuneration or share of royalties | Referral incompetent: not decided | No change required by the judgment |
The majority, written by Mhlantla J, found that section 12D(1) to (5) went further than needed to serve the right to education, shifted onto rights holders the State’s duty to fund textbooks and learning materials, and conflicted with the three-step test in Article 9(2) of the Berne Convention. Majiedt J dissented on that point only and would have upheld the whole Bill. The Court also stressed that upholding the other sections does not stop anyone from challenging them in the ordinary way once they are enacted.
What are Parliament’s options and how long could it take?
Okorie’s IPKat post identifies three routes: strip out the unconstitutional subsections and finalise the Bill, rewrite section 12D following the Court’s guidance, or attempt wider piecemeal changes, which carry a higher risk of fresh presidential reservations.
The CAB is classified as a section 76 Bill, one affecting the provinces, on the Parliamentary Monitoring Group’s bill page. That means the National Assembly and then the National Council of Provinces, with provincial mandates, must both deal with any amendment before it returns to the President. A 9 July 2026 note by Acts Online reported that the Portfolio Committee on Trade, Industry and Competition would limit its review and the mandatory public participation to the affected subsections. On 2 October 2026, however, the PMG page still showed the Bill as “Before Constitutional Court” and recorded no new parliamentary step.
History counsels caution. The Bill was introduced in May 2017, passed in 2019 and reconsidered by Parliament between 2020 and 2024. Our planning assumption for clients is simple: treat the 1978 Act as the law that applies to licences signed now, and draft so that the agreement still works if the amended Act arrives during its term.
Why sections 6A, 7A and 8A still matter for licensing
Because the Court did not rule on them, the royalty-sharing provisions stay in the Bill as Parliament passed them unless Parliament chooses to reopen them. Section 6A, quoted in full in the judgment, entitles the author of a literary or musical work to equitable remuneration or a fair share of the royalty notwithstanding an assignment or licence, “subject to any agreement to the contrary”. The share must be set by written agreement in the prescribed form, and disagreements can be referred to the Tribunal. It does not apply to works made in the course of employment. Sections 7A and 8A follow the same model for visual artistic and audiovisual works.
The Court recorded that Parliament had already deleted subsections 6A(7), 7A(7) and 8A(5), which would have reached assignments made before the amendment, and that the President’s original reservations on that point were addressed. Spoor & Fisher’s view is that the constitutional status of the royalty provisions remains unresolved and that further challenges remain available after enactment.
What this means for your business
- List your South African licences and assignments, especially for educational content, music, images, audiovisual works and software.
- Add change-in-law clauses that address fair use, the final text of section 12D and any royalty-sharing obligation.
- For author and creator agreements, check how remuneration is structured, since section 6A works “subject to any agreement to the contrary”.
- Software vendors should check that reverse-engineering restrictions remain consistent with section 19B once it applies.
- Track the Portfolio Committee’s agenda: if public participation opens, rights holders and users can file submissions.
If you license catalogues or software into South Africa alongside Europe and Latin America, our copyright and digital works team can review your agreements against both the current Act and the likely amended text.
Where companies get this wrong
- Treating the Bill as law. Nothing in it applies until Parliament acts, the President signs and the Act comes into force.
- Assuming the judgment settled everything. The royalty provisions were not decided, and the upheld sections can still be challenged after enactment.
- Reading fair use as if it were the United States doctrine. South African courts will apply section 12A’s own wording and factors.
- Copying one African licence across the continent. Nigeria, Kenya or the OAPI states follow their own laws, not South Africa’s Bill.
Coordinated advice keeps your South African position consistent with the rest of a cross-border licensing structure; our licensing and IP disputes team handles that side, with local correspondents in South Africa.
Frequently asked questions
Is the Copyright Amendment Bill law in South Africa?
No. The Constitutional Court ruled on the Bill on 26 June 2026, but because section 12D(1) to (5) was found unconstitutional, the Bill cannot be signed as passed and must go back through Parliament. Until an amended Act is signed and brought into force, the Copyright Act 98 of 1978 and its fair dealing provisions continue to apply.
What does Parliament have to change after the judgment?
Only the broad educational and academic exceptions in section 12D(1) to (5), together with the matching provisions of the Performers’ Protection Amendment Bill. Parliament can delete them or redraft them more narrowly. Fair use, the other new exceptions and the software and library exceptions were upheld within the scope of the President’s referral.
Will the royalty-sharing rules in sections 6A to 8A survive?
The judgment did not decide them, because the President had not raised the relevant reservation with Parliament first. They therefore remain in the Bill unless Parliament reopens them. Once enacted, they could still be challenged in court, so licensors should draft agreements that work whether or not they take effect.
Can IP Global Guard track the reform and review our South African licences?
Yes. We monitor the Bill’s progress, review licensing and distribution agreements for the impact of the new exceptions and royalty rules, 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 you prepare
South Africa is moving towards a more flexible, and less predictable, copyright regime, and the final shape of section 12D and the royalty rules will affect licence economics. IP Global Guard, the IP services line of META Channel Corporation Limited, manages copyright, licensing and enforcement across more than 25 jurisdictions with one strategy and one billing relationship; see our coverage in Africa, Europe and Latin America.
Tell us which works, catalogues or software you license into South Africa and send us the agreements you rely on. We will flag the clauses to revisit now and keep you informed as the Bill moves through Parliament. Get in touch with 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)
- Spoor & Fisher, Copyright Amendment Bill: Constitutional Court (1 July 2026)
- Acts Online, Constitutional Court rules on Copyright and Performers’ Protection Amendment Bills (9 July 2026)
- The IPKat, guest post by Chijioke Okorie on the Constitutional Court ruling (23 July 2026)
- Parliamentary Monitoring Group, Copyright Amendment Bill (B13-2017), bill history
- Acts Online, Constitution of the Republic of South Africa, section 79
