Tough negotiations in US over SA copyright bill
Washington threatens South African exports
Senior US and South African officials will sit together in Washington DC on Friday to try to resolve an argument over copyright laws which has put billions of dollars in trade at stake
(UPDATE: Technically, as a reader has pointed out, the meeting is a hearing at which multiple sides present rather than a negotiation.)
The United States Trade Representative announced last year a review of SA’s trade deal with the US under the Generalised System of Preferences (GSP). The GSP is the largest and oldest US trade preference programme that allows duty-free imports from less developed countries.
The review decision threatens South African exports to the United States, worth up to R35 billion a year.
The decision to review South Africa’s trade status came after big US entertainment companies, under the umbrella of the International Intellectual Property Alliance (IIPA), complained in a petition about the South African government’s attempt to update copyright legislation.
The IIPA believes that the pending Performers Protection Amendment Bill, which amends the Performers’ Protection Act of 1967 and the Copyright Amendment Bill, which amends the Copyright Act of 1978, are not enough to protect Intellectual property.
At present the Performers’ Protection Amendment Bill and the Copyright Amendment Bill, remain in president Cyril Ramaphosa’s in-tray, unsigned. This is despite lobbying by supporters of the Bills, such as the Creative Workers Union, ReCreate South Africa and Blind SA, who want the president to sign the bills, which would allow easier access to material for libraries, students, and disabled people.
Meanwhile, critics of the Copyright Amendment Bill, such as the Coalition for Effective Copyright in South Africa, insist the president refers the Bill back to Parliament for re-drafting.
But, both supporters and detractors of the Bills are in agreement that President Cyril Ramaphosa must soon make a decision about the Bill’s fate.
The Department of Trade and Industry (DTI) has dismissed US threats to change the trade deal. The decision is “premature and based on speculation,” said the DTI in a letter to the US trade representative on 17 January. The DTI document says that the IIPA petition was “misdirected” since “the proposed law that is being objected to has not yet come into effect, is not part of South African law and accordingly no clear and present damage is being suffered by any US firm as a result of legislative changes.”
The review process will include a public hearing to be held in Washington DC on Friday January 31, to be attended by senior South African trade officials.
The process has attracted several written submissions including, among others, the Recording Industry Association of America, the Library Copyright Alliance, ReCreate South Africa, the Computer and Communication Industrial Association, the National Pork Council and the Fresh Produce Exporters’ Forum among others.
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The article by Linda Daniels "Tough negotiations in US over SA copyright bill " is pure fiction.
The event on 31 January was not a negotiation - it was a hearing by the US Trade Representative about whether it should accept a complaint from the IIPA to review SA's beneficiary status under the GSP. There has therefore been no "decision to review South Africa's trade status." "Senior US and South African officials" did not "sit together" - South African officials (Amb. Xavier Carim and Dr Evelyn Masotja) gave oral testimony, along with many other interested parties, about whether there should be a review or not. Following the oral hearings, all interested parties can still submit rebuttals until later in February. At the earliest, the US Trade Representative will take a decision on a review in March.
This article has been premised on a narrative that it is supposedly "US bullying" that the US is considering whether there should be a review of certain trade preferences that it unilaterally grants South Africa as a result of the controversial Copyright Amendment Bill's expansive exceptions to rights of copyright. The facts do not support that narrative.
This is not about where one stands on the debate around the impact of the Copyright Amendment Bill, but that the main factual claims in Linda Daniels' article are incorrect. Unfortunately it has gone on to be repeated in other news outlets. I would encourage GroundUp to review the factual claims in the article by reference to the formal notices of the hearings published by the US Trade Representative and the specialist reporting in Bloomberg and Politico Pro and to act accordingly if it were to find that the report was lacking.
GroundUp Editor's Response
Thank you for your letter. However, we do not agree that the article is fiction. For the sake of pinpoint accuracy, we have made a small amendment to the article noting that the meeting was a hearing at which multiple people gave their views.
The USTR website states: "USTR also announced it is opening new GSP eligibility reviews for two countries: South Africa, based on IP protection and enforcement concerns, and Azerbaijan, based on worker rights concerns."
Our article was therefore accurate to state: "The United States Trade Representative announced last year a review of SA’s trade deal with the US ...".
The term "US bullying" does not appear in our article. Whether or not the US is "bullying" South Africa is something readers can decide for themselves.
Myburgh refers to this article as 'pure fiction', yet fails to give any reasonable explanation or evidence to back up his criticism. The article is not pure fiction. In a general and informative way, it relates the process and mechanisms adopted by the USTR to address the IIPA's speculative petition. Apart from using the word ‘negotiations’ rather than ‘hearings’, the author describes the situation factually, and without any implication or mention of ‘US bullying’. Readers can make their own conclusions about the USTR process.
The IIPA’s petition is indeed premature and speculative, as the Bill has not even been enacted yet. In fact, the President still has to sign the Bill and then draft regulations have to be published for public comment, and then approved. So it will be a long time before the new Act is in place and has run its course long enough for any possible evidence to be found with regard to inadequate protection of US or any other copyright works.
The President does not have the power of veto and may not review Parliament-approved clauses that the IIPA, USTR or any other stakeholders may not want in the law. He only has two options – he either signs the Bill, or, and only if there are constitutionality issues, can he refer the Bill back to the National Assembly. Anyone requesting or putting pressure on the President to refer the Bill back for further review, or to withdraw the Bill, would in essence be expecting the President of South Africa to act unconstitutionally. South Africa is a sovereign state and the President is empowered by its Constitution to pass legislation for its citizens.
Myburg is mistaken. In fact, after the hearing, South African officials did sit down with USTR officials in private and discuss the complaint.