The Office of the United States Trade Representative has set the review hearings of South Africa’s eligibility under the Generalized System of Preferences (GSP) for 30 January 2020. This underscores the urgency for President Ramaphosa to send the Copyright Amendment Bill back to Parliament before we lose out on R12 billion in South African exports to the US.
This announcement was published in the US Federal Register. It follows an International Intellectual Property Association’s (IIPLA) complaint in April 2019 that the Copyright Amendment Bill passed by the South African Parliament in March threatens not only US intellectual property rights, but also South Africa’s treaty obligations under international law.
GSP designation allows selected South African exports preferential duty-free access to US markets. Should the review find that the Copyright Amendment Bill does not adequately protect American intellectual property, South Africa 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 South Africa loses its GSP status, there will be dire consequences for the ailing South African economy. In 2018, the value of South African goods exported to the US under the GSP program amounted to more than R12 billion. This represented approximately 16% of our total exports to the U.S. As such, the impact on South African businesses, jobs and investments will be severe.
The Office of the United States Trade Representative has set the deadline of 17 January 2020 for the South African government to make a written submission.
The negative consequences of the Bill are not limited to South Africa’s exports and associated job losses. According to a socio-economic impact study by Price Waterhouse Coopers, as many as 1,250 additional workers could lose their jobs in the publishing sector alone if the Bill is signed into law. The jury is still out on the impact of the Bill on the broader creative economy such as film, music, animation, visual arts, etc.
Status of Bill
The Bill is currently before the President awaiting his signature. It has already been reported that the President has raised several reservations on the Bill. These reasons are sufficient in law for him to refer the Copyright Amendment Bill back to Parliament instead of signing it.
The Copyright Amendment Bill is substantively flawed in that it constitutes an arbitrary deprivation of the right to property. The unintended consequences of the Copyright Bill undermine the potential of our 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. For example, they 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. It is marred by inadequate public consultation, incorrect tagging and the failure to conduct a socio-economic impact assessment in accordance with the law.
President Ramaphosa has been considering the Copyright Amendment Bill for nine months. With the public hearings on South Africa’s GSP status set down for 30 January 2020, there is a newfound urgency for the President to send it back to the National Assembly for review and amendment. This will send a strong signal to South African creatives, investors and our trade partners that we recognise the numerous constitutional and other defects of the Bill and will act decisively.
Any further delay will invite devastating consequences. The time for indecision has run out. The CCSA representing a broad consensus within the creative and cultural sector, therefore calls on President Ramaphosa to refer the Bill back to Parliament without further delay.