The United States Trade Representative’s Special 301 Report was published last week with one notable omission. Despite a concerted campaign by the International Intellectual Property Alliance, South Africa was not listed on any of the Report’s “Watch Lists” for its consideration of a sweeping copyright reform bill.
The Special 301 Report identifies countries on various Watch Lists for lacking “adequate and effective intellectual property” or otherwise denying market access to U.S. innovators and creators that rely on IP rights. The International Intellectual Property Alliance filed a complaint to USTR against South Africa, alleging that passage of a proposed Copyright Amendment Bill would breach the statutory standards of Special 301. The core of the IIPA’s complaint is targeted at South Africa’s proposed adoption of a fair use right and other limitations and exceptions, as well as regulations of contracts with creators including a 25-year limitation on assignments and mandatory royalty terms.
The IIPA requested that South Africa be listed as a “Priority Watch List” country, the second to highest warning. USTR has now officially rejected that request, not listing South Africa on any of the Report’s three Watch Lists.
The IIPA previously filed a complaint with USTR asking that South Africa be removed from eligibility for receipt of trade preferences for developing countries under the Generalized System of Preferences (GSP) program. Recipients of GSP benefits are also required to have adequate and effective intellectual property protection, the same standard as is administered through the Special 301 program. The lack of listing of South Africa on any level of the 301 Watch Lists may thus indicate that USTR is not favorably disposed to the IIPA’s request to withdraw GSP benefits from South Africa.
While not listing South Africa on Watch List, USTR did publish one statement of vague criticism of the Copyright Amendment Bill. The Report (p. 28) “raise[s] concerns” about “[l]imitations on the freedom to contract” such as “proposed provisions in two pending bills in South Africa [that] limit certain assignments of rights to a maximum of 25 years and provide for the government to set standard and compulsory contractual terms for contracts.”
Following the recommendation of the 2011 Copyright Review Commission, South Africa’s Copyright Amendment Bill limits all assignments of copyright to 25 years and requires licensing contracts with creators to include royalties for profitable works. These provisions have been praised by some academics and local creators. Similar provisions are being considered currently by copyright reform processes in Canada and Singapore, although neither of these countries’ proposals was singled out in the 301 Report.
The next step in the GSP process is not expected until November.
