[A2k] KEI Request to appear at the January 30, 2020 public hearing on GSP benefits for South Africa and Indonesia

James Love james.love at keionline.org
Sat Jan 18 10:42:54 PST 2020

This is KEI's request to appear at the USTR hearing on GSP benefits, on Jan

KEI Request to  appear at the January 30, 2020 public hearing on GSP
benefits for South Africa and Indonesia

Attn Claudia Chlebek

gsp at ustr.eop.gov.


South Africa: USTR–2019–0020

International Intellectual Property Alliance (IIPA).

Indonesia: USTR–2013–0011

International Intellectual Property Alliance (IIPA).


KEI requests the opportunity to appear at the January 30, 2020 public
hearing, and to provide evidence regarding the proposed trade actions
involving Indonesia and South Africa.

The South Africa copyright issues

The International Intellectual Property Alliance (IIPA) is a coalition of
trade associations representing publishers.


   Association of American Publishers (AAP);

   Entertainment Software Association (ESA);

   Independent Film & Television Alliance (IFTA);

   Motion Picture Association (MPA); and

   Recording Industry Association of America (RIAA).

While these associations have offices in the United States, each one
includes foreign members, such as Sony Pictures Entertainment, , Nintendo,
Pearson and STUDIOCANAL, and are essentially global lobby groups for

Collectively, these publisher lobbies want to punish South Africa for
adopting provisions in its copyright law that follow U.S. legal traditions,
like fair use, or provide practical implementations for widely accepted
copyright exceptions, such as for personal use, quotations, access to works
for persons with disabilities, etc.

South Africa had an estimated population of more than 57.8 million persons
in 2018.  The racial and ethnic makeup is 80.2 percent Black African, 8.4
percent White, 8.8 percent Coloured, and 2.5 percent India/Asian.

The per capita income of South Africa (GNI/population, by World Bank Atlas
method), was $5,751, less than one tenth that of the United States.  But
for most South Africans, the differences are even starker.

The income share by the top 20 percent of the population is 68.2 percent.
The per capita for the top 20 percent is $19,613 per year. This is the
market actively targeted by publishers.

The per capita income of the bottom 80 percent was just $2,286.21 per year.
For the bottom 20 percent, the per capita income was $690 per year.  These
are the people that government is seeking to bring into the mainstream, in
part through greater access to knowledge.

Publishers are opposing changes in the South African law that will expand
the exceptions for education and research in South Africa, and make it
easier for South Africa to enhance enforcement of copyright infringement
while preserving and making legitimate many of the uses of works that are
now legal in the United States and in many countries in Europe.

As many WIPO studies have shown[1], it is often the case that developing
countries have unrealistically narrow exceptions to the rights of copyright
holders.  South Africa’s proposed copyright law is a model for a copyright
law that is more realistic and relevant for developing countries, and one
that is consistent with realistic efforts to increase compliance with
copyright law.

What the IIPA refers to as “Severe Intrusions into Contractual Freedom” are
provisions in the South Africa law that limit the use contracts to
eliminate the public’s rights to works under exceptions permitted by the
Berne and WCT copyright treaties, and the WTO TRIPS Agreement, to protect
performers and authors from extended alienation of rights, and address
cases where publishers do not provide adequate remuneration to performers.

There are legitimate concerns regarding works involving many creative
actors, such as music performances and films, and there are real issues
regarding the government’s efforts to regulate the compensation of
performers.  However, there is no need for the United States to interject
its trade policy officials into this dispute. These are matters best sorted
out in South Africa, under its own political and legal traditions. USTR is
not qualified to act as a global licensing agent, protecting the MPAA and
RIAA interests in every national dispute over performer rights, and the
notion that countries have sovereignty and should make their own laws,
accountable to their own citizens, should have some weight too, in matters
like this.

The provisions in the South Africa law regarding fair use, which is modeled
after the U.S. statute, should be welcomed by the USTR, and not
sanctioned.  The IIPA asserts that the South Africa exceptions are more
liberal than permitted by the Bern Convention or the TRIPS but do not
suggest the USTR litigate these issues under the WTO dispute settlement
system, preferring instead a situation where the USTR itself decides.  Here
we note that the U.S. Copyright Office, the USPTO, the USTR and other
related agencies with a role in intellectual property policy are currently
faced with a remarkable revolving door, and the appearance of conflicts of
interest, and USTR and other trade officials often leave government service
for high paid jobs representing publishers.  This describes, for example,
the two most recent persons to hold the position of the Register of
Copyrights, and a larger number of former USTR officials, including notable
departures from the USTR IPR office to the MPA and the RIAA.

We note that “unlimited parallel importation” is the law of the land in the
United States  (See: Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519
(2013)., even though there is a weaker case for such a policy in the United
States than in a country where 80 percent of the population has an average
income of just over $2 thousand per year.

[1] Study on Copyright Limitations and Exceptions for Educational
Activities, SCCR/33/6; Study on Copyright Limitations and Exceptions for
Libraries and Archives: Updated and Revised (2017 Edition) prepared by
Kenneth D. Crews, J.D., Ph.D, SCCR/35/6, November 2, 2017; Study on
Copyright Limitations and Exceptions for Educational Activities, Prepared
by Professor Daniel Seng, SCCR/33/6, November 9, 2016.


Many of the IIPA complaints to USTR concern measures in the Indonesia law
that protect the domestic film and video industry, through a series of
tariffs and localization and local production requirements, on programs and

While we can appreciate the interest by the MPAA and others to expand its
markets of video content in Indonesia, we can also understand why Indonesia
wants to protect and promote its own cultural industries.  The MPAA members
have ample opportunities to market their products and services in
Indonesia, and to seek whatever changes in the national laws of Indonesia
they want, but they should not be able to use U.S. tariff policies to force
their policies on the Indonesian public.

James Love.  Knowledge Ecology International
U.S. Mobile +1.202.361.3040
U.S. office phone +1.202.332.2670
http://www.keionline.org <http://www.keionline.org/donate.html>

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