South Africa’s Copyright Amendment Bill – released earlier this month for comment – could raise compliance issues for the country in terms of the eligibility criteria of the African Growth and Opportunity Act (Agoa), more specifically the requirement to protect intellectual property.
The bill was currently “riddled with problematic and troublesome provisions inconsistent with international obligations under the World Trade Organisation’s TRIPS Agreement and the Berne Convention".
That's according to the International Intellectual Property Alliance (IIPA) which recently delivered its testimony to the office of the United States trade representative ahead of a hearing before the Agoa Implementation Subcommittee on August 16. Intellectual property law specialists Myers IP agreed, noting that the bill in its current form was in flagrant violation of international norms and would open up brands and organisations to spurious litigation from creators and designers.
A Myers IP patent and trademark attorney told FTW that the amendment bill’s objective was definitely nobler than the effect achieved by the amendments to copyright law. He said that from a business point of view, it would create uncertainty.
“For example, if a business has commissioned work from an ad agency, the agency could now claim rights on work done for the business,” he said. “With the 2017 Copyright Amendment Bill, government is trying to prevent unnecessary exploitation of authors and creators who aren’t seeing sufficient remuneration for their work,” he added. “Unfortunately, the bill has taken this a bit too far and has overextended these protections because they did not seek adequate input from the public.”
The trademark attorney noted that adoption and enforcement of the Act as it stood now would give institutions such as the IIPA grounds to challenge and strike down this piece of legislation, which would be detrimental to the amendment bill’s original objective.
Additionally, it would give the US government the leeway to be able to suspend South Africa as a beneficiary of Agoa. Several challenges to South Africa’s benefits under Agoa have sprung up since 2017 starting with the imposition of conditions regarding US meat imports into South Africa which nearly shattered the local poultry industry.
In addition to this, the US recently implemented increased tariffs on steel and aluminium imports, which negatively affect the domestic steel industry. More recently it proposed similar section 232 duties on the automotive industry which Trade and Industry Minister Rob Davies said would deal a blow to Agoa whose very existence was contingent upon sustained duty-free exports from SA and 38 other sub-Saharan countries to the US.
While the Copyright Amendment Bill poses another threat to South Africa’s access to and benefits under Agoa, Myers IP believes that it is unlikely to be adopted and become legislation.
The intellectual property law specialist pointed out that there would likely be revisions to the bill as more international organisations spoke out against it and as government would not want to be in contravention of international norms or lose access to the benefits received under the Agoa programme as its largest beneficiary.
According to the South African Institute of International Affairs, South Africa has been able to leverage Agoa to grow its exports to the US in sectors other than natural resources, notably the automotive, chemicals and agriculture sectors.
Between 2000 and 2014, South Africa doubled the value of exports to the US, totalling $8.27 billion in 2014, of which nearly 40% benefited from Agoa and preferential tariff systems.
