Nine Years to Get Here
South Africa's Copyright Amendment Bill has been travelling through Parliament and courts since 2017. The Copyright Act it sought to replace had been on the books since 1978 — before the internet, before streaming, before machine learning. The Bill's core innovation was replacing South Africa's narrow "fair dealing" framework, a closed list of permitted purposes covering private study, criticism, and news reporting, with a US-style "fair use" exception that subjects any use of a copyrighted work to an open-ended four-factor fairness test.
That shift proved controversial enough that President Cyril Ramaphosa intervened twice: first referring the Bills back to Parliament in June 2020, then escalating to the Constitutional Court in October 2024 after Parliament's revisions failed to fully address his concerns. The Court heard arguments in May 2025 and delivered its judgment on 26 June 2026 — Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers' Protection Amendment Bill [2026] ZACC 26 (CCT 306/24).
What the Court Actually Held
Writing for the majority, Justice Nonkosi Mhlantla upheld Section 12A's fair use framework as constitutional, finding it did not amount to an arbitrary deprivation of property under section 25(1) of the Constitution. The Court found that an open and adaptable fairness standard — one that evolves with creative practice without requiring constant legislative updates — serves the public interest without disproportionately curtailing rights holders.
The President had argued Section 12A violated the Berne Convention's three-step test, which requires that exceptions cover only special cases, not conflict with normal exploitation of the work, and not unreasonably prejudice the legitimate interests of the author. The Court rejected this framing: a structured four-factor analysis (purpose and character of the use, nature of the work, amount used, and effect on the market) is itself a form of calibrated limitation, not the open-ended override the President described.
The ruling was not a clean sweep. The Court struck down educational exceptions in Section 12D(1)-(5), finding they deprived publishers and authors of remuneration without adequate constitutional justification. Justice Majiedt dissented, arguing the majority had placed "an impermissibly narrow focus on property law, neglecting the fundamental constitutional right to education." Parliament must redraft those provisions before the full Bill can reach the President's desk.
The AI Dimension No One Named
The judgment does not mention artificial intelligence. The implications are nonetheless direct.
Under the 1978 Copyright Act's fair dealing framework, training an AI model on South African copyrighted content would almost certainly constitute infringement: none of the enumerated purposes covers it. Under Section 12A, the question becomes a four-factor fairness analysis — is the purpose transformative? Does the use substitute for the original market? How much of the work is consumed? These are tractable questions, not per se prohibitions.
The parallel with US doctrine is deliberate. According to analysis by Bowmans, a major South African law firm, the fair use clause could allow South African AI developers to train models on copyrighted datasets where use is transformative and does not directly compete with original works — echoing the reasoning in a California federal court ruling (Bartz v Anthropic) which found AI training on lawfully acquired books constitutes fair use. South African courts will apply the four factors independently, but the doctrinal architecture is now compatible.
For companies seeking to build models fine-tuned on locally relevant material — South African music, literature, Nguni-language text, court judgments — Section 12A creates a legal argument where none previously existed. That matters domestically too: training on culturally specific datasets without prohibitive licensing costs is often the difference between building relevant local AI tools and defaulting to models trained overwhelmingly on Western content.
Steelmanning the Creators
The objection from rights holders deserves a serious hearing. South Africa's cultural and creative industries generated R161 billion in output in 2020, accounting for just under 3 percent of GDP — comparable in scale to agriculture. CISAC, which represents over five million creators across 225 member societies, has explicitly warned that South Africa's provision "goes far beyond" US-style fair use in its breadth, stripping creators of royalty revenue and forcing expensive litigation they cannot afford.
This concern has particular force in the AI context. Unlike a researcher who reads a book, a training pipeline can ingest an entire national literature in hours. The scale of the use puts real strain on the "no market substitution" reasoning that typically anchors fair use defences: if AI companies can systematically absorb creative output at zero cost, the market for licensing that content to AI developers may never develop. CISAC's position is not protectionism — it is a structural argument about how unregulated AI ingestion can preempt markets before they exist.
The answer is not to foreclose fair use. It is to ensure courts and, eventually, legislators apply the four-factor test seriously when confronted with industrial-scale AI training. Transformative purpose must mean something more than "we made a different product."
What Comes Next
Parliament must revise Section 12D's educational provisions — a process that could take months — before the Bill reaches the President. But Section 12A's constitutional status is now settled. AI companies, researchers, and digital platforms operating in South Africa have a legal framework to argue within.
That framework leaves output liability entirely open: even lawful training can produce infringing outputs if a model reproduces substantial portions of protected works. The ruling is a starting line, not a clearance. AI companies would be unwise to treat it as a general licence.
South Africa's ruling will also be watched across the continent. Jurisdiction by jurisdiction, African countries are working out whether to follow the US toward flexible fair use or maintain the stricter Berne-derived fair dealing traditions common in Commonwealth jurisdictions. This ruling from Africa's most litigated IP jurisdiction will carry weight in Nairobi, Lagos, and Cairo.