IIPA Claims that South Africa’s Copyright Reform Bill Would Make the Country Ineligible for AGOA Benefits

The U.S. Trade Representative (USTR) is conducting its annual review of country eligibility for trade benefits under the African Growth and Opportunity Act (AGOA). This law allows beneficiary countries to export certain goods into the U.S. duty-free. The benefits are conditional upon a set of criteria, which includes the protection of intellectual property.

The International Intellectual Property Association (IIPA) has filed comments to USTR arguing that South Africa’s copyright reform legislation, if it becomes law, “would place South Africa out of compliance with the AGOA eligibility criteria regarding intellectual property.”  IIPA points to five specific provisions in the legislation, which it claims violate the TRIPS Agreement and the Berne Convention (a footnote points to the treaty articles laying out the three step test). The provisions are:

“An ill-considered importation of the U.S. “fair use” rubric appended to a proliferation of extremely broad and new exceptions and limitations to copyright protection, the effect of which would imperil the legitimate markets for educational texts, locally-distributed works, and online works, in general.

“New provisions regarding the “making available” right for record producers which have a far broader impact across the copyright industries, raising significant concerns.

“Licensing and regulatory mechanisms that are likely to undermine the digital marketplace by regulating the relationship between creative parties rather than by providing a robust legal framework for the protection of creative works within which private parties can freely negotiate the terms of their relationships.

“Unnecessary restrictions on rights holders to contract on the open market, a key factor for the healthy growth of the entire creative sector. For example, the 2017 Bill limits assignment of rights to 25 years.

“Inadequate criminal and civil remedies for infringement, including online piracy.”

The User Rights Network has previously submitted comments to the South African government supporting the legislation, with specific attention to the fair use provision. Indeed, the authors have written in IP Watch that South Africa’s bill “should be a model for the world.”  Sean Flynn and I are writing a response to the IIPA comment, which will be submitted to USTR later this week. USTR is accepting comments for this review until Thursday, August 23.

The IIPA comments were first covered by Inside U.S. Trade.