The American copyright industry generates billions of dollars in annual revenue and is generally seen as one of the primary export products.
Whether it’s movies, music, software or other goods, US 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 US 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 actions 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, Africa included.
The African Growth and Opportunity Act
A few days ago the IIPA published its views on the latest eligibility review of the African Growth and Opportunity Act (AGOA). This process, led by the US Trade Representative (USTR), determines which sub-Saharan African countries can enjoy certain trade benefits.
The idea behind AGOA is to improve economic relations between the African region and the US. However, African countries first have to qualify and that comes with certain restrictions, including a clause that prohibits states from opposing US foreign policy.
The IIPA, for its part, would like to use the legislation to improve copyright laws and strengthen anti-piracy measures. While copyright holders support growth in African countries, they say that the growth of Internet access comes with a major downside; piracy.
“To effectively ensure a safe, healthy, and sustainable digital marketplace, AGOA-eligible countries should assess whether their legal regimes are capable of responding to today’s challenges, including rampant online piracy,” IIPA writes.
The group’s submission for the USTR’s 2022 AGOA eligibility review discusses problematic issues in a variety of countries, but most ink is dedicated to South Africa.
‘South Africa Fails to Protect Rightsholders’
The IIPA writes that South Africa must update and improve its laws to bring these in line with international standards such as the TRIPS Agreement and the WIPO Internet Treaties.
“South Africa’s current legal regime fails to provide adequate and effective protection of copyrighted materials. Significant reforms are needed to South Africa’s Copyright Act and Performers’ Protection Act in order to bring the country’s laws into compliance with international agreements,” IIPA notes.
This is particularly important now that the country is recovering from the COVID pandemic.
“At a time when South Africa is endeavoring to rebound from the economic impacts of the global pandemic, the stakes are extremely high. Parliament should redraft these bills to avoid destabilizing the creative industries and to support a thriving copyright sector.”
Adequate Civil and Criminal Penalties
This strong warning comes with a list of possible improvements. For example, South Africa should have stricter rules to prevent people from circumventing technical protection measures.
In addition, copyright holders should have more options to recover damages from pirates, while the authorities should be able to enforce tougher criminal penalties for copyright infringements.
“South Africa’s legal regime does not provide adequate civil remedies or criminal penalties to allow rights holders to recover their losses from infringement or to deter piracy. Without an adequate means to remedy infringement or deter piracy, the path for legitimate services to operate is difficult,” IIPA notes.
Impact of Earlier Complaints
This isn’t the first time that U.S. copyright holders have criticized South Africa’s copyright law. IIPA and others uttered similar complaints last year. At the time, they were particularly concerned about fair use provisions, which they believe are too broad.
The legislation, which was just a signature away from becoming law last year, was subsequently sent back to Parliament by South African President Cyril Ramaphosa, who requested a do-over.
In their recommendation, IIPA stresses that this do-over should be done carefully. “It is critical that the National Assembly does not rush reconsideration of the bills and make only cosmetic revisions,” it writes.
Among other things, the various copyright exceptions and “fair use” rules, which are largely modeled after US law, should be tightened up. This should take place “in full consultation” with copyright holders and other relevant parties.
The fact that both bills were pulled at the last minute suggests that South Africa is sensitive to these and other complaints. With that in mind, it will be interesting to see what the final versions will look like and if IIPA and others are indeed heard.
A copy of IIPA’s submission for the US Trade Representative’s 2022 AGOA eligibility review is available here (pdf)