Fix Copyright Bill flaws, Ramaphosa, or lose R12bn in exports

People from the creative and cultural sector yesterday implored President Cyril Ramaphosa not to sign the the flawed Copyright Amendment Bill as this could result in South Africa losing up to R12 billion in exports to the United States.

The sector has warned that the United States was likely to push for SA to be kicked out of the US’s Generalised System of Preferences (GSP), which allows selected SA exports preferential duty-free access to US markets, if Ramaphosa did not send the Copyright Amendment Bill back to parliament to rectify the flaws.

Khusela Diko, Ramaphosa’s spokesperson, could not be reached for comment and did not respond to questions.

According to the Copyright Coalition of SA – a group of creative and cultural sector industry players – the Office of the US Trade Representative has set the review hearings of SA’s GSP eligibility and the announcement has been published in the US Federal Register.

This after an International Intellectual Property Association’s (IIPLA) complaint in April that the Copyright Amendment Bill passed by parliament in March threatened not only US intellectual property rights but also SA’s treaty obligations under international law.

Should the review find that the Copyright Amendment Bill does not adequately protect American intellectual property, the coalition has warned, SA will lose its GSP designation since it will be deemed to be non-compliant with the criteria for GSP eligibility under the US Trade Act.

“If SA loses its GSP status, there will be dire consequences for the ailing economy. In 2018, the value of South African goods exported to the US under the GSP programme amounted to more than R12 billion. This represented approximately 16% of our total exports to the US. As such, the impact on South African businesses, jobs and investments will be severe,” the coalition’s chairperson, Collen Dlamini, said yesterday.

He said the Office of the US Trade Representative has given the SA government until January 17 to make written submissions to the inquiry.

Dlamini explained the Bill was substantively flawed in that it constituted an arbitrary deprivation of the right to property and that the unintended consequences of the Bill undermined the potential of SA’s Cultural Capital and the impact intellectual property has on trade for the creative sector.

“The ‘fair use’ introduced by the Bill is a far cry from US-style fair use we tried to copy and paste. The fair use in the Bill creates overbroad exceptions which will leave artists vulnerable to further exploitation by big tech companies,” he said.

The coalition is made up of 12 industry players, including The Music Publishers Association of South Africa, The Publishers Association of South Africa as well as Trade Union of Musicians of South Africa and the Southern African Music Rights Organisation.

“The negative consequences are not limited to SA’s exports and associated job losses. According to a socio-economic impact study by PricewaterhouseCoopers, as many as 1,250 additional workers could lose their jobs in the publishing sector alone if the Bill is signed into law,” Dlamini said.

Thabi Ndhlovu, the coalition’s spokesperson, said the jury was still out on the impact the Bill will have on the broader creative economy.

The president has reportedly raised concerns about the constitutionality of two proposed laws, the Performers’ Protection Amendment Bill and the Copyright Amendment Bill.

Parliament heard last month that Ramaphosa’s lawyers had written to the departments of trade and industry and arts and culture, raising concerns over the consultation process and whether a section of Bill infringed on some people’s rights.

What the Bill says

• 12 A (a) In addition to uses specifically authorised, fair use in respect of a work or the performance of that work, for purposes such as the following, does not infringe copyright:
• Research, private study or personal use, including the use of a lawful copy of the work at a different time or with a different device;
• Criticism or review of that work or of another work;
• Reporting current events;
• Scholarship, teaching and education;
• Comment, illustration, parody, satire, caricature, cartoon, tribute, homage or pastiche;
• Preservation of and access to the collections of libraries, archives and museums;
• Ensuring proper performance of public administration. – Draft Copyright Amendment Bill

Why it is flawed

• Tech giants could reproduce artists’ works without having to pay any fair compensation to the creator and, because the overbroad exceptions are poorly defined, artists could find themselves entangled in costly litigation to protect their rights.
• The Bill is also procedurally flawed as it was marred by inadequate public consultation, incorrect tagging and the failure to conduct a socio-economic impact assessment in accordance with the law. – Copyright Coalition of SA’s Collen Dlamini

US concerns

• GSP, the largest US trade preference programme, is designed to promote economic development by allowing duty-free entry into the US for 3,500 products from the 119 designated beneficiary countries.
• To remain eligible for advantages, beneficiary countries must comply with 15 eligibility criteria, including affording internationally-recognised labour rights, providing adequate and effective protection of intellectual property rights, and assuring equitable and reasonable access to its markets. – Office of the US Trade Representative

For more news your way, download The Citizen’s app for iOS and Android.