This is the KEI request to appear at the January 30, 2020, USTR public hearing on petitions from the IIPA to impose higher tariffs (revoke GSP benefits) on South Africa and Indonesia over copyright issues.
The docket is here: https://www.regulations.gov/document?D=USTR-2019-0020-0001
KEI Request to appear at the January 30, 2020 public hearing on GSP benefits for South Africa and Indonesia
Attn Claudia Chlebek
South Africa: USTR–2019–0020
International Intellectual Property Alliance (IIPA).
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, Vivendi, Pearson and STUDIOCANAL, and are essentially global lobby groups for publishers.
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, 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.
 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 advertising.
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.