Constitutional Court Ruling Brings Clarity to South Africa’s Copyright Reform
South Africa’s Constitutional Court has delivered a landmark judgment on the Copyright Amendment Bill and the Performers’ Protection Amendment Bill, marking an important milestone in the country’s evolving copyright landscape.
On 26 June 2026, the Constitutional Court handed down its judgment following a referral by the President of South Africa regarding the constitutional validity of several provisions contained in both Bills. The decision provides much-needed legal clarity for creators, performers, publishers, rights holders, and the broader creative industries.
Why This Matters
Copyright law sits at the heart of the creative economy. It determines how creators are compensated for their work, how educational institutions access creative content, and how innovation and cultural expression are balanced against public interest.
The Court was asked to determine whether certain provisions of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill were consistent with the Constitution, particularly in relation to property rights and South Africa’s international treaty obligations.
The Court’s Findings
The judgment addressed several key aspects of the proposed legislation.
The Court found that the fair use provision contained in section 12A of the Copyright Amendment Bill is constitutionally valid. It ruled that the provision is neither vague nor an arbitrary deprivation of property and that it appropriately balances the interests of copyright owners with legitimate public interest considerations.
The Court also upheld the copyright exceptions contained in sections 12B and 12C, concluding that these provisions contain sufficient safeguards and limitations to ensure they apply only in specific and justified circumstances.
However, the Court reached a different conclusion regarding section 12D(1)–(5), which deals with educational and academic uses of copyrighted works. The majority held that these provisions amount to an arbitrary deprivation of property under section 25(1) of the Constitution and are therefore unconstitutional.
Importantly, the remaining provisions within section 12D(6)–(9), along with sections 19B and 19C, were upheld as constitutionally valid. The Court further confirmed that the same constitutional principles apply to the equivalent provisions contained in the Performers’ Protection Amendment Bill.
A Divided Court on Educational Exceptions
While the Court reached a majority decision, the judgment also included a notable separate opinion.
One of the judges agreed with the majority on most issues but disagreed regarding the invalidation of the educational exceptions in section 12D(1)–(5). The separate judgment argued that the majority placed too much emphasis on copyright interests without giving sufficient weight to constitutional rights such as access to education, equality, and South Africa’s international human rights commitments.
This differing perspective highlights the ongoing challenge of balancing the protection of creators’ rights with ensuring broad access to knowledge and education.
What This Means for the Music Industry
For music creators, publishers, and performers, the judgment reinforces the importance of maintaining strong copyright protections while recognising carefully balanced exceptions that serve the public interest.
The decision provides greater certainty around:
- the constitutional validity of South Africa’s proposed fair use framework;
- the continued protection of copyright as a recognised property right;
- the legal limits of educational exceptions; and
- the application of these principles to performers’ rights.
As South Africa continues modernising its copyright framework, this judgment will play a significant role in shaping future legislation and the country’s creative economy.
Downtown Music Publishing Africa’s Perspective
At Downtown Music Publishing Africa, we believe that a healthy music ecosystem depends on striking the right balance between protecting creators’ rights and enabling access, innovation, and cultural development.
Copyright remains fundamental to ensuring songwriters, composers, publishers, and performers receive fair recognition and compensation for their creative work. As legislative developments continue, we remain committed to helping our clients navigate the evolving legal landscape while supporting a sustainable and equitable music industry.
Our team will continue monitoring developments surrounding the Copyright Amendment Bill and the Performers’ Protection Amendment Bill and their implications for rights holders across Africa.
Need guidance on copyright, music publishing, or rights management? Get in touch with the Downtown Music Publishing Africa team to learn how we can help protect and maximise the value of your creative works.
