Sanctions unlikely as US reviews SA’s copyright laws
Proposed amendments to copyright legislation has US officials examining SA’s eligibility under the Generalised System of Preferences
A diplomatic spat between the US and SA over SA’s copyright laws came to a head on Friday at a public hearing in Washington. The hearing, attended by senior US and SA officials as well as academics and business representatives, is part of the US trade representative’s (USTR’s) review of SA’s eligibility under the Generalised System of Preferences (GSP).
Established by the Trade Act of 1974, the GSP is the largest and oldest US trade preference programme, which allows duty-free imports from less developed countries. The USTR’s decision to review SA’s preferred trade status came after US entertainment companies, under the umbrella organisation the International Intellectual Property Alliance (IIPA), issued a petition against the SA government’s efforts to update the country’s outdated copyright legislation. It is the IIPA’s view that there is a lack of intellectual property protection and enforcement in the pending Performers Protection Amendment Bill and the Copyright Amendment Bill (CAB).
The USTR’s review has been described as threatening SA exports to the US, reportedly worth R35bn. But the chances of the USTR actually sanctioning SA are slim. The IIPA complaint is a tenuous one. As I have stated in my written submission to the USTR review process, SA has a full panoply of intellectual property rights statutes that meet the requirements of all relevant international treaties. As such, sanctioning SA for these laws would violate World Trade Organization (WTO) rules.
The WTO requires that GSP trade preference programmes be “nonreciprocal” and “designed ... to respond positively to the development, financial and trade needs of developing countries.” SA is a country with the most extreme inequality in the world and faces exclusionary pricing in many markets. It is not prohibited by international law or US trade policy from responding, through broadening copyright exceptions, to similar standards that exist in the US.
The claims of economic loss from fair use are unfounded. Our research shows that broadening exceptions has led to more, not less, US foreign direct investment as well as higher production of research.
The international three-step test — originating in the Berne Convention and included in various forms in the Trips agreement and other copyright treaties — is sensitive to context. It does not require that all limitations and exceptions around the world be the same. It incorporates important protections for copyright owners, but grants a large amount of freedom to legislate within that limit to promote local social and economic concerns.
Perhaps the most controversial exception in SA’s Copyright Amendment Bill — the exception for the use of whole textbooks when they are not available in SA at nonexcessive prices — is itself modelled on the Berne Convention.
The various exceptions the Copyright Amendment Bill adopts are framed in terms that commonly appear elsewhere. For example, the bill’s exception for educational uses of excerpts for teaching can be found in more than 70% of countries in Latin America and Africa.
It is worth reiterating that the exceptions in the law have been subject to constitutional analysis, including by parliament’s legislative counsel and by a group of esteemed SA attorneys. In any case, the complaint is premature. President Cyril Ramaphosa has not yet signed the Copyright Amendment Bill into law. Even when the bill is signed the law only goes into effect after the necessary regulations are promulgated.
The USTR review process has attracted the most participation in a GSP hearing in a long time, populated predominantly by groups and businesses opposing any USTR sanction. Submissions include those by the Library Copyright Alliance, International Federation of Library Associations and Institutions, ReCreate SA, Wikimedia Foundation, the Computer and Communication Industry, the National Pork Council and the Fresh Produce Exporters’ Forum.
• Flynn is director of the programme on information justice and intellectual property at American University Washington's College of Law. This article draws on his written submission to the USTR review process.
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