How the U.S. and European Union pressured South Africa to delay copyright reform

From Politico:

When South African President Cyril Ramaphosa sent a copyright reform back to the parliament last week, he raised constitutional concerns as a reason to delay the bill.

But in the preceding months, the United States and the European Union — encouraged by the powerful cultural industry — had pressured him to postpone the legislation with threats of tariffs and withdrawing investment.

. . . .

While the U.S. tariff threats were out in the open, the European Commission’s campaign to hold up the legislation has been exposed in dozens of internal Commission documents, obtained by former MEP Julia Reda via access to document requests, and shared with POLITICO.

Documents include letters from Hollywood studios, record labels and publishers urging the EU’s executive branch to intervene with the South African government, as well as communications between the Commission’s directorates general and missives from the EU’s delegation to South Africa asking the government to delay the reform.

“That [kind of unilateral pressure] is not terribly surprising from the current U.S. administration. What is surprising is that the European Commission seems to have joined in,” said Andrew Rens, a copyright expert at Research ICT Africa, adding that “the U.S. has been absolutely explicit about their intentions. The European Commission has been a little more discreet.”

Ramaphosa’s decision not to go forward with the bill highlights the sway of the cultural industry, which has opposed the reform for fear it would set a standard for the rest of the African continent.

. . . .

“[Pressure from the cultural industry has] gone as far as mobilizing the U.S. and EU trade authorities, threatening repercussions against South Africa were the reform to receive presidential assent. Clearly … these threats have proven quite effective,” said the International Federation of Actors’ General Secretary Dominick Luquer, who expressed concerns about the delay of “a long-awaited and much-needed copyright reform.”

. . . .

The reform — made up of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill — introduced the notion of “fair use,” a general exception to copyright for research, teaching and caricature, among others.

The Commission was involved very early on and wrote to the government in 2015, 2017 and 2019 to raise concerns about fair use and compliance with international treaties. A Commission official said the EU’s executive body was not against the introduction of the fair use provision in third countries’ legislation but called for “a balanced approach and legal certainty.”

The concerns revolved around “clear delineation of the scope of exceptions, the application of exceptions to commercial uses and the issue of compensation for uses under exceptions,” the official added.

Championed by tech companies such as Google, fair use is usually opposed by rights holders because it allows others to use content they have created or own for free. Fair use exists in U.S. copyright law, although the reform’s critics argue the South African text is much broader. European copyright rules don’t include a fair use provision.

Other disputed provisions include additional remuneration rights for authors and performers, supported by some local creators but rejected by companies such as movie studios and record labels who argue they interfere with contractual freedom.

The Motion Picture Association (MPA), which represents Hollywood studios and Netflix, welcomed the president’s decision. “The MPA was part of a cross-creative sector group which included publishing, music and author societies (among others), which worked closely with local creators to voice concerns transparently across many engagements with the relevant authorities,” a spokesperson said, referring to an open letter sent to Ramaphosa in August 2019.

. . . .

“I don’t think [the president] had constitutional issues, I think he was scared by the pressure from the Americans,” said Christo de Klerk, who works for Blind SA and backs the reform because it includes a general copyright exception for people with disabilities. Blind SA, an NGO helping visually impaired people find jobs, filed a legal proceeding against Ramaphosa to force him to act upon the bills, which had been waiting on his desk for over 15 months.

Link to the rest at Politico

4 thoughts on “How the U.S. and European Union pressured South Africa to delay copyright reform”

  1. Well, this is an expected quagmire.

    (1) The real reason the US wants “fair use” so much is Disney. Disney got nailed — hard — in South African courts for copyright infringement regarding “The Lion Sleeps Tonight” in The Lion King. (Which, of course, rather begs the question as to 1960s folk recordings of the same composition. But that’s about lawyering as much as anything else.)

    (2) But the US can’t have “fair use.” It might be able to have “fair dealing,” the European conception, but that’s a lot more limited. The primary reason is simple: The US has a robust First Amendment and robust First Amendment jurisprudence, together with courts willing to enforce it. Europe… not so much as to any of them (just consider, for example, that it’s still illegal to publish the pseudonymous writings of one Adolf Schickelgrüber in Germany, even for scholarly criticism).

    I hate to say this, but just trust me on this: Going beyond the framework of “fair dealing” to “fair use” requires a First Amendment lurking in the background. It’s not a simple argument; there are copyright scholars (and, frankly, a lot of copyright practitioners who work exclusively for the big transferees — studios, music distributors, publishers) who disagree with it; but the mainline trend in serious scholarship is that fair use is enhanced fair dealing with the enhancement catalyzed by, and necessarily resting upon, the First Amendment.

    So it’s really going to be interesting to see not just what any statute that emerges from this process looks like, but what its application looks like in the court of the RSA. Interesting, that is, in the apocryphal-Chinese-curse sense of “May you live in interesting times” (which I understand to be an Americanism incorrectly, and perhaps maliciously, ascribed to Chinese immigrants).

    • Uh, number (2) – “The US can’t have “fair use”?
      By context I think you mean “South Africa” can’t have it without a First Amendment-style guarantee?
      Or do you mean something beyond the US’s Legal Doctrine?

      My understanding is the US legal doctrine is as useful as it is because it’s *not* constrained to a codified law but rather a principle to be applied case by case, rather like the porn “I know it when I see it” principle.

      I’ve always seen the fair use doctrine as derived from the Constitution’s justification for copyright “to encourage creativity” as opposed to the European version which is solely concerned with paying creators, so the european system is absolute except where specifically constrained, whereas the American version is limited by uses that serve the common good and common sense), as exemplified by the four guidelines in use by the courts. (Particularly the substitution test.)

      My concern with the OP is that it blanket-attributes pressure to the US as a whole that doesn’t appear to be coming from the government but rather from content vendors, of which the most vocal opponents of fair use aren’t even american.

      It’s a complicated issue made more complicated by media reporting, which most often takes the side of the anti-fair use vendors. Not exactly trust-worthy sources.

      • Better for (2) would have been “The US can’t force fair use on South Africa.”

        The actual standards for fair dealing allow nearly as much flexibility as those for fair use; it’s the various national applications of fair dealing that have become hardened, precisely because there isn’t a First Amendment lurking to check restrictions on freedom of expression too directly. Part of this arises because the US is about three decades ahead of Europe (except for the UK, where it’s only fifteen years) in formalizing the “idea/expression” dichotomy in a way that both directly regulates fair use/dealing and eliminates the “sweat of the brow” theory of copyrightability, requiring some sort of “originality.” Although this seems like a tangent, it’s not: The very existence of the EU’s Data Protection Directive and the utter lack of a US equivalent demonstrate the difference rather definitively.

        And in response to the problems with the OP in attributing who applied pressure, the publicly acknowledged sources certainly appear to be Big Media, but there has also been substantial pressure in trade-negotiation back channels, such as contacts with the US Trade Representative. Without asking President Ramaphosa and getting a truthful answer, it’s really hard to tell whether the overt or behind-the-scenes pressure mattered most, or even at all — Disney’s treatment of the heirs who stood to benefit from licensing “The Lion Sleeps Tonight” has not made it any friends anywhere in RSA, for example.

        • Gotcha.

          From where I sit, Fair Use benefits the society that has it.
          And, as I’m a “Live and let die” guy right now (stupid Job-ian 2020, grr), if the RSA isn’t willing to maximize their creativity, they should cower before the hollow threats of the media.
          Which, in the year without theaters, are particularly empty.
          (Even Disney had to get a new line of credit to stay afloat.)

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