At the end of October 2019, the Office of the United States Trade Representative (USTR) said it is reviewing its current dealings with South Africa based on intellectual property concerns.
International copyright laws usually follow the same standards and any country that steps out of line risks losing business as companies feel less secure about the protections they will receive.
This is why the USTR said it is reviewing South Africa after accepting a petition from the International Intellectual Property Alliance (IIPA).
This petition takes issue with two pieces of copyright legislation currently awaiting approval from President Cyril Ramaphosa – the Copyright Amendment Bill and the Performers’ Protection Amendment Bill (PPAB).
“As drafted, many provisions of the bills lack clarity, risk major negative disruption of the creative industries, pose significant harm to the creators they purport to protect, and fall far short of needed reforms,” the IIPA said in its petition.
It said that five major issues of immediate and primary concern to the copyright industries are the following:
1. Restrictions on rights holders
“The inclusion of severe restrictions on the freedom of rights holders to contract in the open market, which is a key factor for the healthy growth of the entire creative sector,” IIPA said.
As an example, it highlighted that both the Copyright Bill and the PPAB limit assignments of rights to a maximum of 25 years, and both bills provide ministerial powers to set standard and compulsory contractual terms for contracts covering seemingly any transfer or use of rights.
2. Broad exceptions and limitations
“An ill-considered importation of the US ‘fair use rubric’ is appended to a proliferation of extremely broad new exceptions and limitations to copyright protection, whose effects would imperil the legitimate markets for educational materials, locally-distributed works, and online works in general,” the IIPA said.
It added that neither the ‘fair use’ nor the ‘fair dealing’ aspects of the proposed bill are ideal, but, more importantly, the proposed ‘hybrid’ model is of utmost concern in terms of its drafting and the challenges posed to any entity that may try to actually use it.
3. Regulates the wrong issues
The IIPA said that the licensing and regulatory mechanisms are likely to undermine the digital marketplace by regulating the relationship between creative parties, rather than providing a robust legal framework for the protection of creative works within which private parties can freely negotiate the terms of their relationships.
The IIPA said that the bill does not provide adequate criminal and civil remedies for infringement – including online piracy.
5. Poorly drafted in some areas
The IIPA said that there are some inadequate provisions in some areas, notably on technical protection measures, and over-broad exceptions to prohibitions on the circumvention of such measures.
Why the review matters
The USTR said that part of its review would be an assessment of South Africa’s eligibility to participate in its Generalized System of Preferences (GSP) based on a petition it had received.
The GSP is the largest and oldest US trade preference program.
It is designed to promote economic development by allowing duty-free entry into the United States for 3,500 products from the 119 designated beneficiary countries and territories.
To remain eligible for these advantages, beneficiary countries must comply with 15 statutory eligibility criteria that are important to US interests, including taking steps to afford internationally recognized labour rights, providing adequate and effective protection of intellectual property rights, and assuring equitable and reasonable access to its markets.
While the government has previously been bullish on passing the bills, it appears to have had a change of heart following the official warning from the US.
President Cyril Ramaphosa now looks set to send the contentious Copyright Amendment Bill back to parliament.
Speaking to the publication, Sports, arts & culture minister Nathi Mthethwa said the Copyright Amendment Bill, as well as the Performers’ Protection Amendment Bill, need to be reworked, taking into account concerns raised by various stakeholders.
“The only thing I can say is that government will never pass a law which people have raised rational points against,” he said.
“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.”