Summary
- The South African music industry faces a new challenge from AI, requiring legal protection akin to past copyright interventions.
- The Copyright Amendment Bill introduces fair use, raising concerns among industry experts over its potential economic impact.
- Advocate Nick Matzukis argues that copyright law must evolve to safeguard music creators against AI-generated content.
- The Constitutional Court's upcoming ruling on fair use vs fair dealing will be pivotal in shaping intellectual property rights.
The internet nearly broke the South African music industry, but copyright law saved it. Now, AI presents a similar threat, one that, if unchecked, could disrupt copyright protections for creators. However, legal frameworks could once again be the industry’s safeguard.
Advocate Nick Matzukis, speaking at the University of Pretoria’s (UP) World Intellectual Property (IP) Day celebration on 30 May 2025, underscored the urgent need for copyright law to mitigate AI-related risks. The event, held at the UP-Javett Art Centre, focused on the power of IP in protecting creative works.
“The music industry will survive,” Matzukis asserted. “The answer is that copyright law must come to our assistance.”
Other speakers included Paballo Masite from the National IP Management Organisation, Emmanuel Okeke of Eversheds Sutherland SA, and Zamile Mzizi-Khuzwayo, manager of the UP Symphony Orchestra. The event also featured performances by saxophonist Jeph Nomvete and vocal-keyboard duo Tristan Smith and Nelson Manganye.
AI, copyright law, and the music industry
To understand the nature of AI’s challenge, one must first examine copyright law. South Africa’s Copyright Act of 1978, last amended in 2002, provides critical protections. However, ongoing amendments through the Copyright Amendment Bill, particularly the introduction of fair use, have sparked concern among music professionals.
Matzukis warned that fair use creates uncertainty, as seen in the US music industry, where litigation over copyright disputes has surged. “Fair use must not happen here; let’s hope the Constitutional Court gets it right,” he remarked.
The bill, already approved by Parliament, was referred to the Constitutional Court by President Cyril Ramaphosa due to constitutional concerns. If enacted, it would replace the existing fair dealing provision, shifting the legal burden from alleged infringers to copyright holders.
Fair dealing vs Fair use: The legal distinction
Both concepts allow exceptions for copyrighted material usage, but their frameworks differ significantly.
- Fair dealing is specific, clear, and well-defined, reducing litigation risks. It grants automatic rights for research, news reporting, reviews, and judicial use, placing the burden of proof on the user.
- Fair use, on the other hand, is open-ended and vague, frequently leading to legal disputes. It shifts the burden of proof onto copyright holders, complicating enforcement.
With AI now capable of adapting lyrics, compositions, and recordings instantly, the implications of fair use could be severe. “AI is going into databases, copying the ones and zeroes,” Matzukis explained. “It learns from them and creates a ‘new’ thing.”
Under fair dealing, copyright holders retain strong protections. Under fair use, these rights may diminish, allowing AI-generated content to bypass existing safeguards.
The path forward: Regulation and industry collaboration
Matzukis emphasised the need for copyright law to evolve alongside AI, advocating for structured engagement between AI developers and the music industry.
“We need to make them our friend. That is how Napster became Spotify. It is not all gloom and doom,” he concluded.
As the Constitutional Court prepares its ruling on fair use vs fair dealing, the outcome will shape the future of copyright law and the rights of music creators in South Africa.
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