Category Trade Disputes

Overview of 2020 Special 301 Hearing

Last week, the Interagency Trade Policy Staff Committee chaired by the U.S. Trade Representative (USTR) held its hearing for the 2020 Special 301 Review... All of the documents associated with the investigation, including the request for comments, submissions from industries and countries, etc. and hearing statements are available at https://www.regulations.gov/docket?D=USTR-2019-0023. A transcript of the hearing will be posted on the docket within the two weeks. Below are some notes on the hearing.

Post-Hearing Statement to USTR, re: Generalized System of Preferences Review of South Africa

[Sean Flynn and Peter Jaszi] This statement provides additional information in regard to the complaint by IIPA against South Africa in both the GSP docket... As explained by the many participants in the public hearing, all of the issues complained about in the Copyright Amendments Bill (CAB) have analogues in U.S. law or in the law of other countries that have not been challenged by the U.S. (including in the Special 301 process or in any WTO or other trade forum). Accordingly, sanctioning South Africa for these rules would lack a “general” basis and could also be considered arbitrary and capricious under the Administrative Procedures Act.

Testimony to Special 301 Committee, Responding to IIPA’s Request to Place South Africa on the Priority Watch List

IIPA has asked you to list South Africa on the second highest designation – on the Priority Watch List... USTR has not listed South Africa, or any Sub-Saharan African country, on any 301 list dating back to 1999. This should raise two key questions for you. What changed after 1999? What has happened since that would justify USTR altering its judgment?

Post-Hearing Statement to USTR, re: Generalized System of Preferences (GSP) Review of South Africa

[Sean Flynn and Peter Jaszi] This statement provides additional information in regard to the complaint by IIPA against South Africa in both the GSP docket... As explained by the many participants in the public hearing, all of the issues complained about in the Copyright Amendments Bill (CAB) have analogues in U.S. law or in the law of other countries that have not been challenged by the U.S. (including in the Special 301 process or in any WTO or other trade forum). Accordingly, sanctioning South Africa for these rules would lack a “general” basis and could also be considered arbitrary and capricious under the Administrative Procedures Act.

User Rights Network Members File Comments to USTR on the GSP Review of South Africa

PIJIP has created a page for comments submitted by members of the User Rights Network to the U.S. Trade Representative for its GSP Country Practice Review of South Africa. This review is being conducted in response to an IIPA petition critical of South Africa's Copyright Amendments Act.

Request to Testify and Public Comment, re: GSP Review of South Africa

...I would like to start with the standard of review in this matter. As noted in the Federal Register Notice, and as included in the relevant statutes, the statutory standard is “adequate and effective intellectual property” ... The plain language of the statutes would suggest that this is a minimum standard. South Africa has a full panoply of intellectual property rights statutes that meet the requirements of all relevant international treaties. The inquiry should end there.

Comment to USTR for the 2019 GSP Review of South Africa

[Mike Palmedo and Andres Izquierdo] Our submission demonstrates that it is common for countries to allow the use of copyrighted works for educational purposes – even full works – without the authorization of the copyright owner. We reviewed the copyright laws all the Members of the African Regional Intellectual Property Organization (ARIPO) and the WIPO Group of Latin American and Caribbean Countries (GRULAC) – a total of 38 countries.

Making Sense of South Africa’s New Copyright Bill and US Trade Threats

The Office of the US Trade Representative has announced a review of South Africa’s eligibility for Generalised System of Preferences benefits. The office took the step after it was petitioned by the International Intellectual Property Alliance, a private sector coalition representing large US entertainment companies. At issue is South Africa’s Copyright Amendment Bill, which has been waiting for the South African president’s signature for eight months. Charl Blignaut asked Professor Sean Flynn and lawyer Jonathan Band to explain the issues.

Top Trade Officials from US and South Africa to Meet Over Copyright Amendments Bill Dispute

The Daily Maverick reports that South African Minister of Trade and Industry Ebrahim Patel and U.S. Trade Representative Robert Lighthizer will soon meet to discuss a dispute over South Africa's proposed Copyright Amendments Bill. The U.S. Trade Representative (USTR) has launched a formal review of South Africa's trade benefits through the General System of Preferences (GSP), to investigate whether the Amendments violate the GSP's eligibility criterion that beneficiary countries provide" provide adequate and effective protection of intellectual property rights." It is doing so at the request of the International Intellectual Property Alliance, a US-based trade group representing publishers.

Could Sanctioning South Africa for Copyright Reform Violate the World Trade Organization?

This note describes the limitations that the World Trade Organization agreements place on criteria for generalized systems of preference programs, such as those included in AGOA. First, the GSP enabling clause requires that factors be non-reciprocal, general, and oriented toward the recipients’ development. These standards may be violated when criteria are not based on a broad based international norm such as in the agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). Second, the dispute settlement understanding prohibits unilateral litigation of TRIPS.

Five Reasons the U.S. Should Not Review Its Dealings With South Africa

[Sean Flynn and Jonathan Band] On November 13, 2019, BusinessTech published an article listing the International Intellectual Property Alliance’s five primary concerns with the Copyright Amendment Bill awaiting President Ramaphosa’s signature. These concerns have led the U.S. Trade Representative to review the eligibility of South Africa for trade preferences. An examination of these five concerns reveals that they have no merit.