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, the stakeholders which have expressed reservations with South Africa’s Copyright Amendment Bill include:
- 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).
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 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 law.
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 Africa
“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 March 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.”