South Africa Rejects Copyright Lobby Critique, Defends Broad ‘Fair Use’ Exceptions

The American copyright industry is one of the country’s primary exports, generating billions of dollars in annual revenue.

Whether it’s movies, music, software or other goods, U.S. companies are among the global market leaders.

To protect the interests of these businesses around the world, copyright holder groups can count on help from the U.S. Government. The annual list of ‘notorious markets,’ for example, is a well-known diplomatic mechanism to encourage other countries to up their enforcement actions and improve laws.

The same is true for trade deals and other policies, which often require trade partners to take action in favor of copyright holder interests.

The International Intellectual Property Alliance (IIPA), which represents the ESA, MPA, and RIAA, among others, has been the voice of major entertainment industries on this front. The Alliance regularly encourages the U.S. to further the international interests of its members, including in Africa.

The African Growth and Opportunity Act

A few weeks ago, the IIPA published its views on the latest eligibility review of the African Growth and Opportunity Act (AGOA). This process, led by the U.S. Trade Representative (USTR), determines which sub-Saharan African countries can enjoy certain trade benefits or, on the other end of the spectrum, be sanctioned.

This isn’t the first review of its kind; we have reported on similar efforts in the past and the most recent review features much of the same critique.

IIPA is concerned that South Africa isn’t doing enough to deter copyright infringement. There are also grave concerns that proposed “fair use” exceptions, which are partly modeled after U.S. law but go further on some issues, could lead to problems in the African country.

The critique from rightsholders hasn’t gone unnoticed by South Africa. President Ramaphosa previously sent the Copyright Amendment Bill (CAB) back to Parliament for a thorough review. That was four years ago and the South African Government is now making it clear that it doesn’t intend to let external forces dictate its law.

South Africa Defends Broad Fair Use Exceptions

This week, the Government sent a response to the USTR addressing IIPA’s critique. It points out that the copyright law hasn’t been implemented yet, so it wouldn’t make sense for the U.S. to use it as a basis for sanctions.

Technicalities aside, South Africa openly rejects IIPA’s critique. The copyright group’s arguments are not new; they were discussed during open review processes and considered by parliament, which simply disagrees with the notion that broad fair use exceptions are a problem.

Specifically, IIPA complained that the new law would create an “overbroad amalgamation of copyright exceptions that includes an expansive ‘fair use’ rubric” that’s “appended to a large number of extremely open-ended new exceptions and limitations to copyright protection, resulting in an unclear thicket of exceptions and limitations.”

In short, this means that the existing ‘fair dealing’ language will be extended with many ‘fair use’ exceptions, allowing the public to use copyrighted material without being punished for it. This can be for educational purposes, for example, but also for personal use as long as it passes the four fair use factors, which also are used in the US.

Regardless of the details, the South African Government says that it doesn’t plan to go back to the drawing board again.

“The issues IIPA has raised are not new and have been addressed previously and the public participation processes in Parliament recently have considered them again,” South Africa writes.

Unlike the IIPA, the Government of South Africa believes that its fair use proposal will benefit society as a whole. Better yet, it may even have a positive effect on the economy.

“Fair dealing in our current Copyright Act is outdated, limited and static, and does not address the digital world. Fair use, on the other hand, is progressive, dynamic and future proof and ‘digital-friendly’.

“Globally, research has found that fair use has not impacted negatively on the economy. On the contrary, there is evidence that shows that countries with open exceptions and fair use have high levels of innovation, economic growth and development,” South Africa adds.

US-Inspired and Innovation-Friendly

In its letter, the South African Government notes that more regimes are moving away from a closed list of fair dealing exceptions, to a more open system that can deal with future technologies and innovation.

The United States has set the example in this regard, with its fair use language that has been pretty much unchanged for nearly half a century.

“It is a fact that fair use was coded in the U.S. Copyright Act of 1976 and has not had to be amended, as it applies to new technologies as they arise,” South Africa writes.

“Other countries have also adopted fair use in their copyright laws and more countries are considering it, because it is ‘future-proof’ and benefits users and producers of information and knowledge. Its four factors give clarity to what can be used and reused.”

The letter makes it clear that the concerns of IIPA and other rightsholder groups have been noted, but no more than that. South Africa clearly wants to move forward and this direct pushback against the lingering demands of the copyright lobby shows that the time for negotiations and backroom meetings has passed.

The Copyright Amendment Bill was formally adopted by South Africa’s Parliament in February, and was sent to President Ramaphosa for approval.

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A copy of IIPA’s original critique, submitted in early June, can be found here (pdf). This includes many other points and issues that we didn’t discuss. South Africa’s repsonse is available here (pdf).

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