We have discussed the proposed reforms to South African copyright law in previous articles. These reforms are controversial, to say the least.

The extent to which these changes may have unintended consequences for South African business has been highlighted in two articles that were published recently. On 26 October 2019 there was an article in Business Insider SA entitled The US just announced a review of SA’s place in its biggest preferential trade scheme – because its movie and music companies don’t like the controversial Copyright Bill. In this article the author, Phillip de Wet, makes the point that the United States plans to review South Africa’s eligibility to participate in its Generalized System of Preferences (GSP), the largest and oldest American scheme to allow duty-free imports from less developed countries”.

De Wet says that the proposed review is “based on IP protection and enforcement concerns”. What he’s talking about here is fair-use exemptions that could exempt certain works like textbooks from copyright protection. He says that US opposition to the proposed amendments is led by the International Intellectual Property Alliance (IIPA), an organisation that represents companies involved in industries such as sound recordings, publishing, software and TV. De Wet makes the point that these American companies are not only concerned about South Africa, but also the rest of sub-Saharan Africa, which they feel may follow South Africa’s lead.

On 27 October 2019 Business Insider SA published an article headed R35 billion in South African exports to the USA are at stake in a “review” just triggered by SA’s copyright reforms. This article provides further detail. De Wet says here that South African exports to the USA, including those under Agoa (African Growth and Opportunity Act), are under threat. He claims that if South Africa is ejected from GSP it will be ejected from Agoa too. He says that US imports from South Africa under GSP and Agoa in 2018 were worth US$2.379 billion (R34.8 billon).

De Wet does concede that exclusion from GSP and Agoa will not necessarily mean an end to all South African exports to the USA, but he makes the point that it will put an end to duty-free exports. South African exports will, as a result, become uncompetitive. What exclusion from GSP and Agoa will do is threaten “South Africa’s access to the entirety of American systems set up to encourage growth through trade”. De Wet reminds us that in 2016 the South African authorities deemed Agoa to be so important that they reluctantly agreed to demands to sell cheap American chicken in South Africa.

These two articles highlight a number of issues. They certainly highlight how important trade deals are these days. Anyone who follows developments regarding Brexit will know that some people suggest that the UK’s loss of access to European markets will be offset by a trade deal with the USA, a deal that Donald Trump has said will be nice and easy to finalise. Chickens feature heavily in this debate too, with many in the UK being concerned that post Brexit their country will be flooded with chlorinated chicken emanating from the USA.

The articles also highlight how important copyright is, and how broad its reach is – copyright law covers a wide range of things from literature to art to music to films to software, and indeed much more. Copyright has huge economic significance for a country like the USA in areas such as film-making, publishing, music and software. Unsurprisingly the major players in these industries have some sway over government policy. Copyright is, of course, economically important for developing world economies too, but often in different ways, such as ensuring that people can access educational and other materials at reasonable prices.

The two articles highlight how important IP in general has become. We’ve seen how IP, and in particular the alleged non-adherence to IP laws by the Chinese, has been at the very centre of the trade issues between the USA and China. The articles highlight the internationalisation of IP, and particularly how there is sometimes an expectation in developed countries that IP laws in developing world countries will match their own laws – there is, of course, considerable resistance in this area, with many African countries insisting that their IP laws do need to be a bit different, in order to make allowances for their particular circumstances.

Don’t ever let anyone tell you IP is some obscure niche field!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.