US at odds with SA over ‘fair use’ in proposed new copyright law

The Presidency has quashed reports that it has decided to send the Copyright Amendment Bill back to Parliament following a review by the United States trade representative (USTR) of South Africa’s preferred trade status with the US.

Spokesperson for the president, Khusela Diko confirmed: “The president is still considering the bill. Let’s allow him to apply his mind to the bill.” When pressed, Diko would not confirm when the president is expected to sign the bill into law. “I wouldn’t like to put a timeframe to it,” she said.

According to section 79 of the Constitution, which provides the details for assent, the president is obliged to sign the Copyright Amendment Bill into law within a reasonable period. He may only send the bill back to Parliament to cure specific constitutional problems.

ReCreate South Africa, a broad coalition of creatives in support of the bill, sought a legal opinion by leading advocates Susannah Cowen SC, Jonathan Berger and Mehluli Nxumalo regarding the bill’s constitutionality. The advocates make clear that general policy concerns raised by some opponents of the bill have no place in the president’s decision about the bill’s assent. They explain:

“The president’s reservations can only be about the constitutionality of the bill. He does not enjoy a general veto, and he may not decline to assent to a bill because he disagrees with the policy underlying it, or has concerns about international obligations that are not independently a requirement of the Constitution… where a reservation is marked, the president must clearly identify the constitutional issues to be addressed. A reservation may not be raised merely because a third party has raised a concern.”

The Copyright Amendment Bill amends the Copyright Act of 1978. The comprehensive bill has provoked a heated debate between proponents and critics of the bill, particularly around its “fair use” provision, which allows for exceptional uses.

The Coalition for Effective Copyright is against the bill’s current provisions and is campaigning for the bill to be redrafted.

While both camps are awaiting the outcome of the president’s decision, the latest news that the US administration has begun a review process that could potentially affect South Africa’s favoured trade position, has ignited a fresh exchange of views between supporters and critics.

The background to the latest round of exchanges about the bill comes after the US trade representative (USTR) responded to a complaint filed six months ago on behalf of large US entertainment companies, concerning the bill. The companies asked the USTR to review South Africa’s eligibility for trade preferences under the African Growth and Opportunity Act.

A central complaint is that South Africa would lack “adequate and effective intellectual property” if it adopted a US-style fair use right into its own law. The companies also challenge the Copyright Amendment Bill’s extension of royalty rights to creators and the reversion of rights back to creators after 25 years.

The USTR acceptance of the industry complaint has created a backlash from some US scholars and businesses.

Professor Matt Sag, a professor at Loyola University in Chicago, opined that “South Africa is simply enacting exceptions and limitations that are common throughout the World Trade Organisation (WTO). Indeed, many of the policies, including fair use and reversion rights, exist in one form or another in the United States.”

Professor Sean Flynn, Director of the Program on Information Justice and Intellectual Property at the American University Washington College of Law, described the USTR complaint as “hypocritical but unsurprising”.

“The Trump Administration may see it as in the United States’ interest for it to have fair use, which allows courts to adapt exceptions to changing technology – but not allow anyone else to have it. Fair use is part of the US innovation and entertainment enabling environment. It gives the US a trade advantage that it may not want to share.”

In a letter dated 5 November 2019 and addressed to the Presidency, Ed Black, president and CEO of the American Computer and Communications Industry Association, described how US policy has long considered fair use central to the promotion of innovation and development.

Black cited statements by domestic and foreign policy officials as to the value of fair use. Black wrote that the USTR explained in 2012 that “consumers and businesses rely on a range of exceptions and limitations, such as fair use, in their businesses and daily lives”. He further elaborated that the US Intellectual Property Enforcement Coordinator (IPEC) described fair use in its 2016 Joint Strategic Plan as central to enabling “new and innovative uses of media (eg, remixes and mashups involving music, video and the visual arts).”

Black concluded: “Contrary to the suggestions of the US companies opposing fair use in South Africa, there is nothing inappropriate about the Copyright Amendment Bill’s inclusion of fair use. South African users and creators should be allowed to benefit from fair use, just as American users and creators are able to, along with the millions of citizens of the other jurisdictions that have adopted fair use.”

The International Federation of Library Associations and Institutions (IFLA) expressed its support for South Africa’s Copyright Amendment Bill in a letter to the Presidency dated 29 October 2019. The letter, written by the general secretary of the alliance, Gerald Leitner, said in part, “Drawing on established existing best practice from around the world, the current Copyright Bill stands to give your country the rules it needs to continue to promote home-grown education and research. The bill as it stands today will facilitate efforts to create a new generation of researchers, innovators and writers in South Africa, reducing dependence on imported publications and multinational companies.

“I am aware that you are facing pressure to reject this legislation, based on questionable assertions about international law and claims of negative impacts that have been firmly dismissed by governments elsewhere. I note with particular concern the pressure being applied by foreign governments, notably by the government of the United States on whose own fair use provisions the proposed South African reforms are closely modelled. Efforts to subject other countries to less flexible rules than those enjoyed by Americans merely risks reinforcing global development divides.”

The USTR action has also been challenged as violating the World Trade Organisation treaties. Flynn explained:

“Generalised system of preferences benefits cannot be denied for any reason. This not a quid pro quo program. GSP programmes are governed by the WTO’s ‘Enabling Clause’ which requires criteria to be ‘non-reciprocal’ and ‘designed... to respond positively to the development, financial and trade needs of developing countries.’

“A later decision by the WTO made clear that GSP benefits cannot be withdrawn for a criterion that does not violate international law. Demanding that South Africa give up the benefits of fair use and other copyright policies that the US itself has, does not begin to meet this burden. If the US withdrew benefits on this basis, South Africa could challenge that action in the WTO.”

A public seminar to discuss the constitutional questions that have been raised in the bill will be held on December 2 at the University of Witwatersrand from 9am to 5pm. MC