Validating South Africa’s Copyright Reform through the Lens of US GSP: The Need to Abolish Reciprocal Requirements

In 2011 the South African government initiated a reform process that identified certain challenges facing copyright-based industries, such as poor governance, reliance on the old and outdated Copyright Act 98 of 1978, which cannot govern the effective exploitation of copyright in the digital era, and limited access to copyrighted materials for educational purposes. This reform culminated in the Copyright Amendment Bill B13-2017 (CAB), which currently awaits the president’s assent. The same CAB was subjected to a review by the US Trade Representative (USTR) after the International Intellectual Property Alliance (IIPA) challenged the legality of specific provisions as being non-compliant with South Africa’s international intellectual property (IP) obligations. This policy insight shows that it is the US’ external trade policy to use its Generalised System of Preferences (GSP) and associated conditionalities to promote compliance with international IP obligations in order to protect its own IP interests. In addition, this unilateral approach to enforcing compliance not only infringes on the national regulatory space of GSP beneficiaries but also goes against the spirit of the Enabling Clause, making it difficult for GSP beneficiaries to realise the benefits to industrialise their economies. South Africa’s benefits could be withdrawn or suspended should it fail to meet the demands of the IIPA, with the result that the country could experience adverse effects through loss of employment opportunities and incomes. Furthermore, South Africa’s continuation of and/ or re-admission to the programme would require it to abandon the specific terms of the CAB for a US-oriented form of copyright law.