Professors Sean Flynn and Peter Jaszi
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Introduction

This statement provides additional information in regard to the complaint by IIPA against South Africa in both the GSP docket. 

As discussed in the pre-hearing statements, U.S. statutes must be interpreted to comply with international treaty commitments. Murray v. The Schooner Charming Betsy, 6 U.S. 64 (U.S. 1804). At issue in this process is the meaning of the term “adequate and effective intellectual property,” which occurs in the GSP statute. USTR is required to implement the U.S. GSP and AGOA statues in line with the WTO GSP Enabling Clause, which requires that GSP criteria be “general,” “non-reciprocal” (Para 2) and “designed . . . to respond positively to the development, financial and trade needs of developing countries.” (Para 3).[1]  The WTO TRIPS agreement provides the applicable “adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights.” (Preamble). 

As explained by the many participants in the public hearing, all of the issues complained about in the Copyright Amendments Bill (CAB) have analogues in U.S. law or in the law of other countries that have not been challenged by the U.S. (including in the Special 301 process or in any WTO or other trade forum). Accordingly, sanctioning South Africa for these rules would lack a “general” basis and could also be considered arbitrary and capricious under the Administrative Procedures Act. 

Within a post-colonial international order characterized by respect for national sovereignty, large trading nations like the U.S. should insist on a significant evidentiary showing before demanding that democratically arrived-at legislation developing countries be rewritten primarily to suit the self-interest of their own nationals. This is particularly true where, as in the case of South Africa’s Copyright Amendment Bill the legislation itself has not been implemented, and its claimed potential adverse impacts are both hypothetical and (to the extent that they prove real) readily capable of mitigation.  

Moreover, it is significant that although the filings and testimony of representatives of U.S. copyright industries assert that their interests are at risk, the record as we are aware of it contains no factual demonstrations whatsoever to support even those narrowly based assertions.  

This post-hearing statement provides additional examples and information in these regards.   

Full Comment (PDF): https://www.regulations.gov/document?D=USTR-2019-0020-0057

[1] See EC – Preferential Tariffs, WTO Appellate Body (explaining that GSP criteria must be based on an “objective” and “[b]road-based recognition of a particular need,” such as those “set out in the WTO Agreement or in multilateral instruments adopted by international organizations”).