USTR Criticizes South Africa’s Copyright Amendment Bill Over Broad Exceptions and Enforcement Concerns

On March 31, 2020, the Office of the United States Trade Representative (USTR) released its 2020 National Trade Estimates Report on Foreign Trade Barriers (NTE), fulfilling its statutory obligation under multiple trade acts to report annually on significant foreign trade barriers. While broader in scope than the USTR’s Special 301 report, the NTE report often signals issues likely to appear in the forthcoming Special 301 publication.

In the 2020 NTE Report, USTR documented concerns raised by stakeholders regarding South Africa’s copyright and industrial property protections, focusing particularly on the Copyright Amendment Bill and the Performers’ Protection Bill. These bills, introduced by South Africa’s Department of Trade and Industry (DTI), aim to modernize the country’s copyright law by introducing provisions such as the right of communication to the public.

However, the USTR report characterizes the copyright exceptions in the Amendment Bill as “broad and ambiguous.” It highlights stakeholder apprehensions that the bills contain provisions potentially weakening the adequacy and effectiveness of copyright and related rights protections. Specific issues include expansive exceptions to copyright, new restrictions on contractual relations between private parties, and a prohibition on circumvention of technological protection measures (TPMs) that some argue may not meet international standards and include overly broad exceptions.

The bills were passed by the South African Parliament in March 2019 and, as of March 2020, awaited the president’s decision to either sign them into law or return them to Parliament. The legislative process has been met with significant opposition from both South African and international stakeholders, particularly within the creative industries, who fear the bills in their current form undermine copyright protections.

In addition to the bills, the DTI finalized Phase I of the Intellectual Property Policy of the Republic of South Africa, which sets the foundation for future IP legislation and regulations. Some stakeholders have expressed concern that this policy advocates for weaker exclusive patent rights among other issues.

Knowledge Ecology International (KEI) noted during a January 2020 public hearing on Generalized System of Preferences (GSP) benefits for South Africa that publisher lobbies are opposing the bills because they incorporate provisions akin to U.S. fair use and other widely accepted copyright exceptions. These include exceptions for personal use, quotations, access for persons with disabilities, and expanded exceptions for education and research.

KEI emphasized that these publisher groups seek to penalize South Africa for adopting copyright provisions that align with U.S. legal traditions and practical implementations of exceptions common in many countries, including the United States and Europe. The proposed South African copyright law is described as a model for developing countries, aiming to be realistic and relevant while promoting compliance.

Stephen Wyber of the International Federation of Library Associations and Institutions (IFLA) criticized the USTR for uncritically repeating arguments from a single lobby group, which he called “specious and speculative,” thereby hindering much-needed copyright modernization in South Africa. Wyber suggested that the USTR’s stance could ultimately be counterproductive, encouraging skepticism toward the U.S. copyright framework that has fostered global creativity.

Manon Ress, PhD, Director of Information Society Projects at KEI, also condemned the USTR’s objections to the fair use provisions and other limitations and exceptions in the South African bill, noting that the legislation had not yet been enacted or implemented. Ress highlighted the practical benefits the bill’s provisions would offer, especially during the COVID-19 pandemic, which led to a strict lockdown in South Africa starting March 27, 2020. She pointed out that fair use and educational exceptions would facilitate emergency remote teaching, research, and online access to library and archive collections, while exceptions for people with disabilities would enhance access to learning and leisure materials.

The USTR Special 301 Report for 2020, expected by early May 2020, will likely further address these copyright concerns in South Africa, continuing the scrutiny of the country’s evolving intellectual property landscape.