I was somewhat surprised at the article entitled ‘SA’s new copyright bills could sink Agoa – Contentious laws could ‘substantially lower’ protections’, published in The Sunday Times newspaper on 30 July 2023. Despite opposition from mainly rightsholders, collecting societies, a few political parties, and multinationals, the Copyright Amendment Bill has been strongly supported by international, regional and local organisations, institutions, trade unions, IP experts, academics, libraries, archives, and other information services, as well as many authors and creators, communities serving people with disabilities, NGOs, and many others interested in seeing a human-rights related Bill being passed in the near future.
The article in question is hyperbolic and based on a regurgitated complaint which has already been ignored repeatedly by several US administrations. At the USTR’s public hearings on AGOA in Washington, DC, in early 2020, 34 out of 46 written submissions urged the USTR not to withdraw AGOA. Despite calls at the time for South Africa to be listed as a “Priority Watch List” country, the USTR officially rejected this, and has rightfully excluded South Africa from its Watch Lists to date.
Due to the US and EU’s undue pressure on President Ramaphosa, orchestrated by rightsholders in 2019 to stall the approved Bill, the President decided to send it back for review in mid-2020, on the grounds of constitutionality concerns. After its detailed Parliamentary review during 2021/22, Bill B13D-2017 was approved by the National Assembly on 21 September 2022. Due to the Bill being retagged as a Section 76 Bill, it also went through a new process, including written submissions from stakeholders, public hearings, online and in-person, and many deliberations in the National Council of Provinces and all the Provincial Legislatures. In early August 2023, after a voting process in, and reports by, the Provincial Legislatures, the National Council of Provinces voted on and approved the E-List of amendments. In September 2023, the final Bill is expected to be presented to the Provincial Legislatures again for final mandates and votes, and then for approval by the National Council of Provinces at its Plenary meeting. Thereafter, it will again proceed through the National Assembly for final approval before it goes to the President once again for assent.
What is well-known is that in recent months AGOA issues have been raised again, due to South Africa’s relationship with Russia, and not because of the Copyright Amendment Bill, which has become a convenient ‘red herring’ in this matter.
The following submissions to the USTR in early August strongly corroborate what stakeholders affirmed about AGOA in the 2020 USTR public submissions and hearings, and why many stakeholders strongly support the Bill –
- American University Washington College of Law, Program of Information Justice and Intellectual Property – Prof. S. Flynn (US) and Prof. K. Beiter (SA)
- Congress of South African Trade Unions (COSATU)
- Library Copyright Alliance/ALA/ARL Submission to USTR
In my humble view, it would be naïve of the US to withdraw from AGOA, whilst Russia and China are ‘standing in the wings’. Suffice to say, it is in the interests of the US to keep growing the potential future benefits that AGOA aims to promote and create for South Africans, but to ensure reciprocal benefits for farmers and other producers in the US.
In fact, the Copyright Amendment Bill should be hailed by the US as an excellent legislative tool to improve access to information for all. It would increase the number of readers, students, educators, and researchers, who would become potential buyers, researchers, and new creators of works. It would also enable established creators to access and lawfully use and re-use others’ works for their own creative purposes. A new eco-system for readership, creativity, innovation, and knowledge creation would be established. In the process, the Bill would create a more constructive environment that will enhance the benefits of AGOA for South Africa and the US, through better access to and application of knowledge, new innovations and inventions, increased productivity, collaboration, and creativity in the agricultural and other relevant sectors addressed by AGOA.
One has to question then why this article suggests that Copyright Amendment Bill could ‘sink AGOA’, and why copyright protections could be substantially lowered? Both are false assumptions. Firstly, the Bill has clauses similar to the US copyright law, as well as other progressive copyright laws in developed countries. Secondly, there is a wealth of free, online legal resources globally, and IP experts and law libraries here and abroad that can be consulted, until such time as South Africa has developed its own jurisprudence, like other ‘fair use’ countries have successfully done. Thirdly, Section 24(3) of the 1978 Copyright Act already provides for statutory damages – See: South African Legal Expert Assessment of IIPA Petition of 18 April 2019, in respect of South African Copyright Amendment Processes. And, fourthly, South Africa is bound by ‘national treatment’ in IP agreements.
The Bill has been ‘panel-beaten’ from all angles, since 2017. It is now refined, confirmed by many IP experts, here and abroad, to be constitutional, and compliant with international IP commitments. It will change the lives of millions of people in South Africa who have been deprived of accessing educational resources, and those requiring accessible formats to access information. It will not only improve the resources and quality of services offered by libraries, archives, and other information services but will also allow preservation and digital curation to protect their collections, and South Africa’s documentary records and cultural heritage. Creatives will enjoy improved moral rights and more control over their works, obtain reversion of rights to further exploit their works, and have safeguards from unfair contracts. They will also earn fairer royalties, when collecting societies are regulated and finally become more transparent and accountable.
The Bill will take South Africa into the 21st century at last. It has been hailed by many as a model for other countries, due to its progressive, balanced and future-proof approach, within a human rights framework. Let there be no more delays or filibustering!
Parliament must pass the Bill urgently!
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