[A2k] Participating in SA fair use hearing at USTR

Sean Flynn sflynn at wcl.american.edu
Wed Jan 8 11:17:59 PST 2020


There is an upcoming USTR hearing on January 30, 2020, that includes a challenge by the IIPA to South Africa's adoption of fair use and other exceptions in its copyright amendment bill.  See http://infojustice.org/archives/41826

Please find below some links and guidelines on how to submit a request to testify and comments.

I.             HOW TO REQUEST TO TESTIFY
Requests to testify must be filed by January 17, 11:59pm at the following link:
https://www.federalregister.gov/documents/2019/11/19/2019-24947/generalized-system-of-preferences-gsp-notice-regarding-a-hearing-for-country-practice-reviews-of
You need to upload at least a short summary of your testimony. But there will be a post-hearing process where you can submit more comments. A short letter at this stage can suffice.
A USTR official explained to us:
"If you plan to testify, I would submit your testimony by the 17th and submit the longer 'comments' submission after the hearing and by Feb. 28th. This way if you would like to add information regarding something mentioned in the hearing, you will have the ability to add to your 'comments' doc."
II.           WHAT IS THE COMPLAINT ABOUT?
The IIPA complaint is available here:
http://infojustice.org/wp-content/uploads/2019/11/IIPA-South-Africa-GSP-Review-Petition-2019.pdf
In short, the complaint argues that the Bill's extensive exceptions violate the Berne 3-step test and that the bill's extended rights to royalties and limitations of assignments are bad policy.

III.          WHERE CAN I FIND OTHER INFORMATION ABOUT THE BILL?
PIJIP has created a section by section description of the main provisions of the bill at:
PIJIP, SA Copyright Amendment Bill Major Provisions 2019 https://tinyurl.com/SACopyBillB
A collection of positive South African press articles on the bill can be found at: https://www.re-createza.org/new-page-1
A legal opinion on the bill, including a useful summary of the legislative process, is available at: https://www.re-createza.org/legal-opinion-on-the-bill

IV.          WHAT ARE SOME MAJOR COMMENTS THAT COULD BE ADDRESSED?
Some headline points to consider making include:
1.            South Africa is among the most unequal countries in the world. It has a rich - mostly white - minority that makes up about 10% of the population, a small working class, and a massive impoverished majority that struggles to afford basic needs. It is attempting to use copyright reform to both serve development needs, like increasing access to knowledge and education, and to address bargaining power inequality between large distributors (publishers and labels) and local creators.
2.            GSP programs are intended to be development focused and their criteria must be "non-reciprocal." WTO law bans the use of GSP programs to serve parochial trade interests of the granting country. South Africa must be deemed to have adequate and effective IP if it complies with TRIPS and other international agreements. See http://infojustice.org/archives/41858
3.            The exceptions South Africa proposes are consistent with those that exist in many other countries and are reasonable given South Africa's context.
4.            Exerting trade pressure on South Africa for its proposed exceptions violates US policy as expressed in FTAs and in WIPO. The USTR resists international norm setting on exceptions in WIPO, WTO and trade agreements because it says that countries should remain free to adopt exceptions in line with the 3-step test. Since the TPP negotiations, it has been US policy that an adequate and effective copyright system should have fair use like balancing provisions.
5.            Fair use benefits development as well as the economy, including trade interests of United States businesses.


Sean Flynn
Professorial Lecturer and Director
Program on Information Justice and Intellectual Property
American University Washington College of Law
www.pijip.org<http://www.pijip.org/>



Sean Flynn
Professorial Lecturer and Director
Program on Information Justice and Intellectual Property
American University Washington College of Law
www.pijip.org<http://www.pijip.org/>



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