The American copyright industry generates billions of dollars in annual revenue and is generally seen as one of the country’s primary exports.
Whether it’s movies, music, software or other goods, U.S. companies are among the market leaders.
To protect the interests of these businesses around the globe, copyright holder groups can count on help from the U.S. Government. The yearly list of ‘notorious markets,’ for example, is a well known diplomatic pressure 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.
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 particularly concerned that South Africa isn’t doing enough to deter copyright infringement. There are also grave concerns that the proposed “fair use” exception, which is modeled after legislation in the U.S., could lead to problems in the African country.
The critique from rightsholders hasn’t gone unnoticed by South Africa. President Cyril Ramaphosa previously sent two copyright-related bills back to Parliament but IIPA and other rightsholder groups haven’t yet seen the desired changes.
Amid these high-level political lobbying efforts, one submission clearly stands out. Last week, the Library Copyright Alliance (LCA), which consists of the American Library Association and the Association of Research Libraries, sent a rather outspoken take to the USTR.
The Alliance represents more than 100,000 libraries which are used by 200 million Americans each year. While there is no direct tie to South Africa that we’re aware of, the group pays close attention to copyright-related developments around the globe.
When the Alliance read IIPA’s critique of South Africa’s copyright policies and plans, it felt the need to jump in and add a different take on the situation.
The libraries counter IIPA’s submission point by point. One of the key points of contention is the fair use proposal, which South Africa modeled after the U.S. version. According to rightsholders, this is a concern since it includes many copyright exceptions that might be abused.
The libraries clearly have a different take. They argue that protesting a fair use policy inspired by U.S. law is hypocritical.
“[A]s a matter of policy, the United States should always support other countries’ adoption of provisions based on U.S. copyright law. This is true regardless of whether the provision expands the scope of copyright or limits it. To oppose such adoption appears hypocritical and condescending,” the libraries write.
One of IIPA’s arguments suggests that the South African fair use proposal could violate the Berne Convention and the TRIPS Agreement. The libraries don’t contest that, but warn that, if true, the same would apply to the U.S. version.
“IIPA appears to imply that a fair use provision might be inconsistent with the three-step test in the Berne Convention and the TRIPS Agreement. This is a dangerous argument for IIPA to make, because if section 12A of the CAB violates the three-step test, so does 17 U.S.C. § 107.”
Above and Beyond
Some of the IIPA’s suggestions go beyond U.S. copyright law, the libraries note. For example, IIPA calls for stricter anti-piracy enforcement, including a policy that requires online platforms to prevent unauthorized use of copyrighted works on their platforms.
According to the libraries, this goes above and beyond what online services are required to do under U.S. law.
“These [requirements] do not exist in U.S. law. It appears that IIPA is requesting USTR to impose the EU Copyright in the Digital Single Market’s filtering obligations on South Africa,” the libraries write.
In other instances, IIPA requests South Africa to adopt U.S. standards that exceed international ones. For example, it requests a 70-year copyright term, as opposed to the 50-years standard.
“IIPA complains that the PPAB does not extend the term of protection in sound recordings from 50 years to 70 years. However, the term of protection for sound recordings set forth in the TRIPS Agreement and the WPPT is 50 years.
“South Africa should not be penalized for complying with, but not exceeding, these international standards,” the libraries add.
Finally, the libraries point out what they believe is an “Orwellian” take from the IIPA. The rightsholders argue that academic freedom would be threatened if scientists have the right to freely share the results of Government-funded research.
This would ensure that publicly funded research can be published in an open-access format, instead of being locked behind a paywall. As such, the libraries fail to see how this puts academic freedom at stake.
“This is a truly Orwellian argument. How does preserving a scientist’s right to make her research publicly available undermine her academic freedom?” they write.
The examples highlighted above are just a fraction of the points brought up by the Library Copyright Alliance’s submission. Overall the libraries conclude that many of the policy choices made in the bills are completely consistent with U.S. law. Other than that, it stresses that legislation is never perfect for all parties and that compromises have to be made.
A copy of the Library Copyright Alliance (LCA) submission to the USTR is available here (pdf)