The Trump Administration’s trade representative has accepted a complaint by the Hollywood entertainment industry and opened an inquiry into whether South Africa’s adoption of a US-style “fair use” right should trigger exclusion from the trade preference programme known as the African Growth and Opportunity Act.
There are those in South Africa who think the proper response from President Cyril Ramaphosa is to immediately back down and send the bill back to Parliament. See: “Ramaphosa taking SA to brink with Copyright Amendment Bill – Dean Macpherson”.
We would call for cooler heads to prevail.
South African officials should find this situation familiar. In the late 1990s, in the midst of the AIDS crisis, South African officials boldly announced a set of policy reforms permitted by international treaties to expand access to needed drugs being excessively priced by multinational companies.
The Clinton Administration – at the behest of multinational pharmaceutical firms – threatened trade sanctions under the “Special 301” programme which allows unilateral sanctions by the US if another country lacks “adequate and effective” intellectual property rights. Pharmaceutical companies even sued the then president Nelson Mandela, alleging an unconstitutional deprivation of their patent rights.
The Mandela administration did not waver. International human rights advocates rose to defend its policies. It was the US administration and the big pharmaceutical companies that backed down. See Ellen FM ’t Hoen, The Global Politics of Pharmaceutical Monopoly Power. Today, South Africa is treating most of the people in the country with HIV who need it. Other countries have been emboldened to follow suit.
Textbooks are the new medicines. Social movements in South Africa have risen to demand access to affordable education. They made fees fall, but textbooks can still eat all of a student’s survival allowance. Copyright allows the four or five big publishers who dominate global markets to price South Africans out of the market.
The government’s reports even found that books, including Nelson Mandela’s Long Walk to Freedom, are often sold at higher prices here than in London. As filmmakers, we have long faced the barriers to our trade that result in South Africa’s historical archives being locked up in Los Angeles, New York and London.
The South Africa Copyright Amendment Bill, crafted over a five-year period of consultation and government review, adopts a US-style “fair use” clause and improved exceptions for education, libraries, archives, museums and for technological innovation. It will allow South African producers to make mash-ups and sample art. It gives students the right to copy portions of works for learning – and whole books if they are excessively priced.
It also requires royalties for profitable works to go to creators themselves, reverts rights to authors after 25 years, makes collective management companies serve artists, and extends rights to performers of music and stage art. It is, in other words, a boon to local creators and users. It is also a threat to those who seek to continue to deny South Africa the tools for remuneration and creation that others already have.
Multinational intellectual property industries are striking back again with their same old tools. They again threaten trade sanctions and litigation. And again a South African president is being asked to back down.
We call on the president to fight back now as his mentor and leader did before. As Harvard Professor Ruth Okediji opined last month on a visit to South Africa to support its policies, “South Africa should not have won the access to medicines war only to deny its citizens access to knowledge.”
The Bill of Rights is the cornerstone of South African democracy. The right to education has been affirmed repeatedly by South African courts as an empowerment right that must be realised immediately – particularly in the context of students’ access to textbooks in some of the poorest parts of the country. The president must fulfil his constitutional obligation to respect, protect, promote and fulfil the right to education and the right of access to textbooks and other learning materials. Signing the Copyright Amendment Bill is one step towards fulfilling the obligation. Standing up to the US in this regard, is standing up for the Bill of Rights. See Sanya Samtani on the Right to Education and the Copyright Bill. MC
Rehad Desai and Ben Cashdan are producers and co-chairs at ReCreate South Africa. Anele Yawa is general secretary of the Treatment Action Campaign. Sanya Samtani is a doctoral researcher at the Bonavero Institute of Human Rights, University of Oxford.
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