The U.S. Trade Representative (USTR) has announced an upcoming review of South Africa’s eligibility for trade benefits under the General System of Preferences (GSP), a system which allows duty-free imports from developing countries that meet certain criteria. According to the announcement, USTR “is accepting a petition from the International Intellectual Property Alliance based on concerns with South Africa’s compliance with the GSP IP criterion, in the area of copyright protection and enforcement.” It will publish a Federal Register Notice requesting comments and announcing the dates of a public hearing.
To date, it has not made the petition available online. However, the International Intellectual Property Alliance (IIPA) has made its concerns known in previous communications to USTR. Its 2019 Special 301 comments submitted last February attacks South Africa’s Copyright Amendments Bill at length. IIPA notes particular concern with the fact that the bill includes a fair use provision modeled on U.S. law, combined with a closed list of copyright exceptions:
An ill-considered importation of the U.S. “fair use” rubric is appended to a proliferation of extremely broad new exceptions and limitations to copyright protection, whose effects would imperil the legitimate markets for educational materials, locally-distributed works, and online works in general. Neither the “fair use” nor the “fair dealing” aspects of the proposed bill are ideal, but, more importantly, the proposed “hybrid” model is of utmost concern in terms of its drafting and the challenges posed to any entity that may try to actually use it.
IIPA’s 2019 Special 301 Submission
The IIPA’s comment also lists concerns with how licensing and contracting would operate under the bill, with criminal and civil penalties for infringement, and with provisions against the circumvention of technological protection measures. It alleges that the Copyright Amendments Bill will violate the “three step test” as stated in Article 13 of the World Trade Organization’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Finally, it states that the Bill will violate the terms of the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treaty.
Advocates for the bill have pushed back against these claims in the past. A joint comment by the User Rights Expert Network and Creative Commons has noted that the hybrid model
… combines a set of modern specific exceptions for various purposes (Section 12B) and an open general exception that can be used to assess any use not specifically authorised. Both provisions greatly improve the clarity and balance in the existing law.
Andrew Rens has written in Business Day that
Critics of fair use say they prefer highly specific, detailed exceptions. Detailed exceptions are important, but they can only ever be backward-looking, dealing with current uses of current technologies. Only a general exception clause is future orientated. A general exception clause allows courts to balance innovative uses against the exclusivity given to copyright holders, and so enable continuous adaption.
University of Capetown IP Unit Director Tobias Schonwetter, in a submission to the South African government, has argued that both the open-ended and the specific copyright limitations pass the three step test:
… open-ended, flexible fair use provisions like the one contained in the South African Copyright Amendment Bill are indeed permissible under and consistent with the three-step test – and in fact needed for copyright law to adapt to digital technology.
As for the other exceptions contained in ss12B-19D the Bill, I cannot see any obvious conflicts with the three-step test either: Several of these provisions stem from the current Copyright Act and it is assumed that their compliance with the three-step test is not all of a sudden challenged now. As far as newly introduced exceptions and limitations are
concerned, some of these are based on similar provisions in foreign laws. This may not substantiate compliance with the three-step test per se but may at least suggest compliance if these provisions have not been challenged in the other country.
More comments in support of South Africa’s Copyright Amendment Bill can be found here.
