Last year, the South African parliament adopted a progressive new copyright bill that would have drastically improved access to educational materials, introduced a fair use exception, implemented the Marrakesh treaty for the benefit of people who are blind or print disabled, and strengthened the negotiating positions of authors and performers in their negotiations with publishers. On Friday, the South African President decided to send the bill back to Parliament, citing constitutional concerns1. While civil society had waited for over one year for the President to sign the bill into law, entertainment industry associations IFPI, MPA and others had lobbied foreign governments to intervene in South Africa’s democratic process and compel the President to refer the bill back to Parliament – apparently with success.
The role of the United States (US) in trying to get South Africa to abandon the reform has been a matter of public record ever since the US Trade Representative started an investigation late last year that could have led to South Africa losing trade benefits when importing goods to the US. But details of the EU Commission’s intervention on behalf of the entertainment industry have only become known in recent days, following a freedom of information request to DG Trade2.
According to the documents, entertainment industry groups approached DG Trade in 2019 with the initial idea that the European Commission should send a “demarche”, a letter submitted by the EU Ambassador to South Africa “to the highest levels of the South African government” in order “to eliminate the negative impact that the Bills would have on the creators they aim to support”. Actual creators’ associations, meanwhile, had no problems with the bill and wrote to DG Trade shortly thereafter, urging them to let the South African copyright reform go ahead, which would drastically improve the position of the original authors and performers vis-à-vis their much more powerful international publishers. In their letter, they pointed out that “performers and other creative workers in South Africa have been subsidizing the industry for far too long. The overwhelming majority live a very precarious life.”
Indeed, income inequality in South Africa is the highest in the world and the publishing industry caters mostly to the wealthy – majority white – elite in the country. The copyright bill tries to address this income inequality on several fronts, by allowing the copying of textbooks that are not offered at affordable prices, and by improving the negotiating position of, majority low income and majority Black, authors and performers. The contractual protections proposed in the South African copyright bill are not unlike those included in the 2019 EU copyright Directive.
Despite the authors’ and performers’ explicit support for the bill, the European Commission decided to follow the entertainment industry’s call for intervention. On 20 March 2020, a month after a lobby meeting between DG Trade and representatives of the MPA and IFPI, the EU Ambassador to South Africa sent a letter to the South African President, urging him not to sign the copyright bill into law. The letter contains thinly veiled threats that European businesses would pull investments from South Africa should the copyright law go ahead, although DG Trade’s interactions that led to sending the letter were primarily with US-based entertainment companies such as the Hollywood studios organized in MPA. In other words, the European Commission was intervening on behalf of US entertainment companies to deny Black South African authors and performers the same contractual rights that it recently granted European authors. Despite its claims towards the South African government that it was “consulting widely”, the internal documents show that the European Commission did not consult with European civil society at all. If civil society had been consulted, the European Commission would know that there is broad support for the introduction of fair use and the rapid implementation of the Marrakesh treaty.
The European Commission’s intervention in South Africa’s democratic process is not just worrying from corporate lobbying perspective. It also highlights the extreme hypocrisy in its international copyright policy. In negotiations on international copyright treaties, the Commission has long been opposed to any global standards on copyright exceptions. Even in the case of the Marrakesh treaty, designed to provide access to knowledge for the blind, the EU had to be dragged to the negotiating table kicking and screaming. It has rebuffed recent initiatives to draft a treaty for global exceptions for libraries and educational institutions, arguing that the cultural differences between countries are too significant to have a one-size-fits-all approach and that countries should be free to adopt the copyright exceptions that fit their specific circumstances. South Africa was trying to do just that – to introduce fair use provisions and educational exceptions specific to the post-Apartheid democracy that is still struggling with huge income inequality and structural discrimination.
The European Commission’s hypocrisy in intervening to bring this reform to a halt is perhaps only surpassed by that of the US government, which is denying another country the same fair use provision that has supported the US economy for decades. While we may not expect any better from the US government, we should hold the European Commission to a higher standard. This is why EDRi is calling upon the European Parliament’s Trade committee to put the issue on the agenda and question the Commission about its aggressive lobbying on behalf of the entertainment industry. EDRi is also preparing a letter to Trade Commissioner Hogan to bring accountability to the European Commission’s international copyright policies.
Twitter thread on @Senficon (19.06.2020)
Blind SA Constitutional Challenge Of The Copyright Amendment Bill (19.06.2020)
EEAS letter to the Office of the South African President on the South African Draft Copyright Bill (28.04.2020)
Mr President, stand up to Trump and Big Hollywood (10.11.2019)
(Contribution by Julia Reda, from EDRi member GFF)