[A2k] 2020: USTR takes aim at South Africa over copyright limitations and exceptions

Thiru Balasubramaniam thiru at keionline.org
Wed Apr 22 08:41:47 PDT 2020


2020: USTR takes aim at South Africa over copyright limitations and

Posted on April 22, 2020 <https://www.keionline.org/32804> by Thiru

On March 31st, 2020, the Office of the United States Trade Representative
(USTR) published its 2020 National Trade Estimates Report on Foreign Trade
Barriers (NTE). As USTR notes, in “accordance with section 181 of the Trade
Act of 1974, as amended by section 303 of the Trade and Tariff Act of 1984
and amended by section 1304 of the Omnibus Trade and Competitiveness Act of
1988, section 311 of the Uruguay Round Trade Agreements Act, and section
1202 of the Internet Tax Freedom Act, USTR is required to submit to the
President, the Senate Finance Committee, and appropriate committees in the
House of Representatives, an annual report on significant foreign trade
barriers.” (Source: 2020 National Trade Estimates Report on Foreign Trade
Barriers (NTE)

While the NTE report has a broader remit than the USTR Special 301 report,
it does serve as a barometer for what to expect in the Special 301 report.
In the 2020 NTE Report on Foreign Trade Barriers, USTR documents the
concerns expressed by stakeholders in relation to copyright and industrial
property protection in South Africa. As noted by Knowledge Ecology
International (KEI) in January 2020 <https://www.keionline.org/32151>, the
stakeholders which have expressed reservations with South Africa’s
Copyright Amendment Bill include:

   1. Association of American Publishers (AAP);
   2. Entertainment Software Association (ESA);
   3. Independent Film & Television Alliance (IFTA);
   4. Motion Picture Association (MPA); and
   5. Recording Industry Association of America (RIAA).

The USTR Foreign Trade Barriers Report for 2020 characterized the
provisions in South Africa’s Copyright Amendment Bill on copyright
exceptions as being “broad and ambiguous”.

The DTI introduced an updated draft of the Copyright Amendment Bill and the
Performers’ Protection Bill that contain some needed modernization of the
copyright law, such as the introduction of the right of communication to
the public. However, these bills also contain provisions that some
stakeholders assert will weaken the adequacy and effectiveness of copyright
and related rights protection in South Africa. Specific concerns include
broad and ambiguous exceptions to copyright, new limitations on contractual
relations between private parties, and a provision prohibiting the
circumvention of technological protection measures (TPMs) that some
stakeholders assert may not meet international standards and contains
overly broad exceptions. The bills passed Parliament in March 2019, and are
currently with the South African president who, as of March 2020, had not
indicated whether he will sign the bills into law or send them back to
Parliament. Significant numbers of South African and international
stakeholders, particularly in the creative industries, oppose the bills in
their current form. The DTI also finalized the Intellectual Property Policy
of the Republic of South Africa Phase I (IP Policy), which lays the
groundwork for future legislation and regulations governing IP in South
Africa. Stakeholders have raised concerns that the IP Policy advocates for
weaker exclusive patent rights, among other things.

The USTR Special 301 Report for 2020 is expected to be published by early
May 2020.

As noted by KEI <https://www.keionline.org/32151> at the January 2020
public hearing on GSP benefits for South Africa:

   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.

   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.

   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

*Additional Commentary*

*Stephen Wyber, International Federation of Library Associations and
Institutions (IFLA)*

“It is a shame to see USTR unquestioningly reproduce the specious and
speculative arguments made by one particular lobby in order to prevent a
much-needed modernisation of copyright in South Africa. In the end, the
report may prove self-defeating, encouraging others to question the laws
that have seen the US become such a powerhouse of creativity globally.”

*Denise Nicholson, Specialist Copyright Librarian, Johannesburg, South

“It is ironic and certainly premature that the IIPA, through the USTR,
should be objecting to fair use provisions (based directly on US fair use)
and other limitations and exceptions in the SA Copyright Amendment Bill.
The Bill has not yet been enacted or implemented at this stage, so there is
no possible indication or available evidence that the Bill’s provisions
might be detrimental to any stakeholders, locally or internationally. After
implementation of the Bill and Regulations, which will address many of the
concerns raised by opponents of the Bill, it will take some years before
such “evidence”, if any, could be empirically and legally measured.

Due to the COVID-19 pandemic, South Africa was put under strict lock-down
on 27 April 2020. Schools and tertiary educational institutions as well as
libraries and archives were closed on very short notice. Had the Bill been
enacted, and if it were in place right now, the fair use provision and
educational and research exceptions, for instance, would certainly help
educational institutions in setting up emergency remote teaching and
research activities, and in offering courses via password-protected
e-learning platforms. The library and archive exceptions would enable
online access to collections and knowledge-sharing for faculty and
students. The exceptions for people with disabilities would enable access
and provide learning, research and leisure material in accessible formats,
and provide important information to these communities about COVID-19.”

*Manon Ress, PhD, Director of Information Society Projects, Knowledge
Ecology International*

Once again, the USTR is embarrassing itself, bowing to the publishing,
film, and music industry lobbyists in Washington, DC criticizing a foreign
government for creating a space for creativity and access to knowledge.
Respect to copyright can only be advanced by supporting the fair balance
between protection and limitation and exception to exclusive rights. The
USA is not getting rid of its own fair use and should not prevent other
countries to implement policies such as fair dealing and fair use.

At the GSP and 301 hearings, certain representatives of the publishing and
entertainment industry expressed contempt for South Africa’s judicial
system; this is not only inappropriate but should have been rejected by
USTR as insulting and useless in a clear and loud way. But again, USTR went
for a shameless submissive attitude toward the industry lobbyists.

It is time to reform the USTR ways of dealing with international
corporations’ influence and ensure that foreign countries are treated with
respect by our representatives.”

Thiru Balasubramaniam
Geneva Representative
Knowledge Ecology International
41 22 791 6727
thiru at keionline.org

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