Copyright bill gives SA creators their due
In a recent Business Day article titled “Copyright bill threatens R12bn in exports to US markets”, a mountain was made out of a molehill. This has often been the case with conversations surrounding the Copyright Amendment Bill.
The SA Copyright Amendment Bill at its heart extends the rights of SA creators and performers to own, earn from and create their works. Often, as in the case of the adoption of a “fair use” right to enable transformative works of creativity and technology, the bill is giving SA creators what those in many other leading countries already have.
A lobby group backed by those who benefit from the licensing streams from SA consumers to foreign publishing and entertainment monopolies are crying foul. The Business Day article on trade retaliation is part of this group’s fear-mongering campaign. There is another side to the story.
Even if SA were listed, the likelihood of being sanctioned by the US for a copyright law policy dispute is very low.
The opening line of the article reads: “About R12bn of SA’s exports could lose preferential access to US markets if a lobby group convinces the Donald Trump administration to withdraw SA’s trade status should the contentious Copyright Amendment Bill be passed into law in its current form.” The key words in this opening line are“could” and “if”. The fact is this threat is very unlikely. .
First of all, it is important to note that the Trump administration has rebuffed repeated attempts by the same US-based movie and entertainment industry association (the “IIPA”) to threaten sanctions on SA over the Copyright Amendment Bill. The latest example is the absence of any complaint about the bill in the annual “Special 301” report on intellectual property by the US trade representative.
Legally, any sanctions for an intellectual property matter must first be listed in the annual “Special 301” report as a “Priority Foreign Country”. The IIPA asked for such a listing of SA in 2019, but the country was not even listed on the lowest level of concern in the report.
Even if SA were listed, the likelihood of being sanctioned by the US for a copyright law policy dispute is very low. Outside of the recent sanctions on China, no World Trade Organisation (WTO) member has been sanctioned by the US for an intellectual property dispute. The reason is that the WTO prohibits the use of sanctions for intellectual property policies that do not violate the main international law treaty in this area — the WTO’s agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Fair rights, which the US has had in its law since the 1970s, do not violate TRIPS.
The article also states that IIPA has submitted a request that the US government review the eligibility of SA as a generalised system of preferences (GSP) beneficiary developing country. It argues that the enactment of the bill will result in SA becoming noncompliant with the GSP programme. But WTO decisions have held that countries cannot remove GSP benefits for policies that do not themselves violate international treaties in the subject area. And fair use does not violate international law. So the US can’t sanction SA for adopting fair use.
Trump, of course, is known to ignore the WTO and sanction foreign countries over Twitter late at night — like when they involve China trade imbalances or immigration from Mexico. Are we really to believe that adopting the same fair-use rights the US already has is going to rise to this level in Trump’s Twitter feed? It is a risk. But a small one.
We are at the end of a decade-long debate through our legislature about how to best promote the needs of SA creators and users in the digital environment. The bill decided that SA creators should have the same rights of fair use as US creators. No more will our role be to export value with no rights to benefit. We applaud that policy decision and urge the president to sign the bill.
Those who advocate that the Copyright Amendment Bill will bring industries to a crashing halt are the very same institutions who currently have a monopoly over copyrighted works and play a role in continuing to stifle creativity, innovation and access to knowledge and information in SA.
Instead of listening to the static of threats that have yet to occur, creatives should critically engage with the bill and the many benefits it proposes for the creative industry.
• Tusi is the ReCreate policy fellow.