For nearly a decade, South Africa’s Copyright Amendment Bill and Performers’ Protection Amendment Bill have sparked heated debate across the creative industry. Musicians, authors, publishers, filmmakers, broadcasters, educators and legal practitioners have all been waiting to see how the country’s copyright laws would evolve.

On 26 June 2026, the Constitutional Court issued a landmark judgment following the President’s referral of both bills to the Court, after raising reservations about their constitutionality. While many expected a simple “yes” or “no” to the Bills, the Court instead delivered a nuanced judgment that protects both creators’ rights and the public interest.

First things first: The Bills ARE NOT LAW! (yet)
A common misconception following the judgment is that the Copyright Amendment Bill has now become law.
That is not the case.
The Constitutional Court’s role was really just to determine whether certain provisions were constitutional as some were declared unconstitutional. Parliament must still address those defective provisions before the legislative process can be completed, and such completion would mean the bill will finally be an official law.
The judgment thus serves as a representation of an important milestone in South Africa’s copyright reform journey rather than its conclusion. Baby steps.

Why was this case before the Constitutional Court?
The Copyright Amendment Bill (“CAB”) and the Performers’ Protection Amendment Bill (“PPAB”) were introduced to modernize South Africa’s copyright framework. Among other things, the Bills aim to:
expand access to copyrighted works;
introduce a flexible “fair use” exception;
improve access to works for persons with disabilities;
strengthen the rights of performers; and
update copyright legislation for the digital age.
Although Parliament passed both Bills, the President raised concerns that certain provisions might be unconstitutional and referred them to the Constitutional Court for a decision before signing them into law.

What did the Court decide?
Now this is where things get a bit legalistic. Rather than striking down the Bills entirely, the Court assessed each challenged provision individually.
Fair Use is constitutional
Perhaps the most closely watched aspect of the judgment was South Africa’s proposed introduction of fair use.
Unlike South Africa’s current “fair dealing” system, which lists specific circumstances where copyrighted material may be used without permission, fair use is a more flexible approach. It allows courts to consider whether a particular use is fair by looking at factors such as:
the purpose of the use;
the nature of the copyrighted work;
how much of the work was used; and
whether the use negatively affects the market for the original work.

The Constitutional Court held that introducing fair use does not amount to an unconstitutional deprivation of property. In other words, copyright owners continue to enjoy constitutional protection over their works, even though the law now recognizes broader circumstances in which copyrighted material may be used without permission.
In essence, the fair use clause is one that is unwelcomed by many copyright stakeholders due to concerns over legal uncertainty and reduced licensing revenue, however those who advocate for access-to-knowledge argue that it is an essential clause for a modern and balanced copyright system.

Some ‘exceptions’ were declared unconstitutional obo copyright owners, others survived scrutiny.
While the Court upheld most of the proposed exceptions, it drew the line when considering parts of the educational exceptions contained in section 12D.

Section 12D (1) – (5)
These provisions created broad exceptions allowing educational institutions and those involved in teaching and learning to reproduce copyright works for educational and academic activities without permission in certain circumstances. They also allowed copies to be incorporated into course materials and, in some cases, permitted the reproduction of an entire textbook where a license was unavailable on reasonable terms or the price was considered unreasonable.
The Constitutional Court declared these provisions unconstitutional because they:
were too broad and uncertain;
did not clearly define who could benefit;
risked interfering with the normal commercial exploitation of copyright works; and
could unfairly deprive copyright owners of the value of their property.

Section 12D(6)–(9) – Limited educational uses (held constitutional)
The Court upheld sections 12D(6)–(9), together with sections 12A, 12B, 12C, 19B and 19C, finding that these provisions achieve an appropriate balance between protecting the rights of copyright owners and advancing important public interests such:
students using portions of works in assignments, theses and dissertations;
authors of publicly funded research making their final manuscripts available through institutional repositories or open-access licenses;
attribution and fair practice requirements; and the use of illustrations for teaching where justified by the educational purpose
These demonstrate that the Court sought to strike a careful balance between promoting education and access to information while ensuring that creators are not unfairly deprived of the economic value of their works.
Most of the proposed provisions may proceed, but some must be reconsidered before the Bill can be finalised.

What does this mean for creators?
For songwriters, composers, performers, producers, authors and other rightsholders, the judgment reinforces an important principle: copyright remains constitutional property.
The Court confirmed that copyright deserves constitutional protection because it allows creators to control how their works are used and to earn an income from their creative efforts. At the same time, the Court recognized that copyright has never been an absolute right (meaning a right that you can exercise without any limitations). It must coexist with other constitutional values such as education, freedom of expression, research and access to information. Rights entitled to everyone.
Practically speaking, this means creators can continue to rely on copyright protection, while understanding that certain limited uses of their works may be lawful without permission where those uses satisfy the requirements of fair use.

What does this mean for the music industry?
For the music industry, the judgment does not immediately change how royalties are collected or distributed.

Instead, it lays the legal foundation for a modern copyright framework that may influence licensing practices, educational use of music, digital platforms and future copyright disputes.
Music publishers, record labels, collecting societies, performers and music rights administrators should monitor the next stages of the legislative process closely. Once the amended legislation comes into operation, organizations across the industry may need to review their licensing practices, internal policies and rights management processes to ensure compliance with the new legal framework.

Looking ahead
The Constitutional Court has provided much-needed clarity after years of uncertainty.
The judgment recognizes that creators deserve meaningful protection for their intellectual property while also acknowledging that copyright law must evolve to meet the needs of education, research, technological innovation and public access to knowledge.
Parliament must now consider the next steps by addressing the constitutional issues identified by the Court before the Bills are returned to the President again for assent. Creative industries will undoubtedly continue to engage with one of the most important legal reforms affecting South African copyright in decades.

For artists, performers, publishers, labels and rights owners, one thing is clear: the conversation around copyright reform is far from over, but the Constitutional Court has now established an important constitutional roadmap for the future.

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