Picture: 123RF / ALEXLMX
Picture: 123RF / ALEXLMX

President Cyril Ramaphosa is in a race against time to send back the contentious Copyright Amendment Bill back to parliament as the US reviews SA’s eligibility for its trade preference programme.

The US government could decide as early as the first quarter of 2020 whether to suspend SA from its generalised system of preferences (GSP).

The Trump administration is reviewing SA’s preferential access to its markets over concerns that the bill will threaten intellectual property (IP) rights. The suspension could cost the country at least R12bn in exports to key US markets.

In an announcement published in the US Federal Register recently, the office of the US trade representative set the review hearings of SA’s eligibility under the GSP programme for January 30.

The office has set a deadline of January 17 for the South African government to make a written submission.  The GSP programme allows selected South African exports preferential duty-free access to US markets.

Parliament recently approved the Copyright Amendment Bill, which is now awaiting Ramaphosa’s signature before becoming law. The bill proposes changing the country’s copyright regime, which includes the introduction of the “fair use” principle which, in effect, allows for the free use of copyrighted content.

The “fair use” framework included in the rules, which gives individuals and companies numerous avenues to circumvent copyright protections and republish content, follows the example set by the US.

But unlike SA’s courts, those in the US can award hefty statutory punitive damages in copyright-infringement cases, opponents of the bill say. In SA, an offender would simply have to stop reusing the content and would only have to pay standard royalties.

The International Intellectual Property Association (IIPA), which represents US companies that produce copyright-protected material, including computer software, films, television programmes, music, books, and journals (electronic and print media), is objecting to the bill because of the risk it poses to American intellectual property rights. As a retaliatory measure, the association has been lobbying the US government to withdraw SA’s preferential trade status.

Under the US Trade Act, one of the criteria for eligibility for the GSP programme is that the state “provide ‘adequate and effective protection’ of American copyrighted works and sound recordings”.

Collen Dlamini, who speaks on behalf of Coalition for Effective Copyright, a local group which represents copyright lawyers, publishers, broadcasters and recording companies, and is opposing the bill, said the negative consequences of the bill are not limited to SA’s exports and associated job losses.

“According to a socioeconomic impact study by PwC, as many as 1,250 additional workers could lose their jobs in the publishing sector alone if the bill is signed into law. The jury is still out on the impact of the bill on the broader creative economy such as film, music, animation, visual arts, etc,” Dlamini said.

“With the public hearings on SA’s GSP status set down for January 30, 2020, there is a newfound urgency for the president to send it back to the National Assembly for review and amendment,” he said.

In November, sports, arts & culture minister Nathi Mthethwa said the Copyright Amendment Bill needed to be reworked.

“The only thing I can say is that government will never pass a law which people have raised rational points against… we never operate that way. We have listened to what people are saying and ours is to advise the president and that is what we are doing,” Mthethwa said at the time.