Jonathan Band
The documents provided to Knowledge Ecology International in response to its Freedom of Information Act request to the U.S. Trade Representative concerning the South African Copyright Amendment Bill (“CAB”) led to the discovery of a set of comments on the draft bill prepared by Michele Woods, Director of the Copyright Law Division of the World Intellectual Property Organization. These comments, dated October 1, 2018, in effect refute the central argument of the International Intellectual Property Alliance’s petition to USTR that South Africa should be denied U.S. trade preferences because the CAB, if signed into law, would not provide adequate and effective protection to intellectual property. Woods prepared these comments as a member of a panel of experts appointed by the Portfolio Committee of the South African Parliament to review the CAB. Woods stated that the comments reflected her views and are not official WIPO interpretations of international treaty obligations.
The heart of IIPA’s USTR petition is that the exceptions contained in the CAB do not comply with the “three-step test” set forth in the Berne Convention and other international agreements. In particular, IIPA criticizes the CAB’s fair use provision based on the U.S. fair use right, 17 U.S.C. § 107. Additionally, IIPA attacks the CAB’s “hybrid” approach of a flexible fair use provision combined with specific exceptions.
Significantly, Woods made absolutely no comments about the CAB’s fair use provision. Similarly, she said nothing about the CAB’s hybrid approach. Clearly, if she thought they were inconsistent with the three-step test, she would have said so.
To be sure, Woods does offer criticisms of some of the CAB’s specific exceptions. With respect to the exception for people with disabilities (section 19D), her point is not that the exception is too broad, but that it is too narrow; it does not, in her view, contain a sufficiently articulated mechanism for effectuating the cross-border exchanges of accessible format copies, as permitted by the Marrakesh Treaty. Although the CAB in fact does provide the necessary statutory framework for cross border exchanges, additional details can be addressed in regulations..
Woods questions the three-step compliance of some aspects of the exception for libraries, archives, museums, and galleries (section 19C), but U.S. libraries and archives routinely engage in these practices under a fair use theory. Moreover, the IIPA does not identify the CAB’s library exception as a source of concern.
The one exception flagged by IIPA that also troubles Woods from a three-step perspective is section 12D(3), which allows educational institutions to copy an entire book into a course pack if a license is not available from the rightsholder on reasonable terms and conditions. However, the reasonable price standard appears in the U.S. Copyright Act’s exception for libraries and archives. See 17 U.S.C. § 108(h)(2). See also 17 U.S.C. § 108(c)(1) and (e) (“cannot be obtained at a fair price”). Additionally, one can reasonably argue that permitting copying in a developing country for educational purposes when the righsholder refuses to license the use on reasonable terms is three-step compliant.
The bottom line is this: Woods’ analysis of the CAB’s exceptions undercuts the core of the IIPA’s petition that these exceptions would deprive U.S. rightsholders of adequate and effective IP protection in South Africa.
