US Government Threatening To Kill Free Trade With South Africa After Hollywood Complained It Was Adopting American Fair Use Principles

from the what-the-actual-fuck? dept

Hollywood hates fair use. Even though Hollywood frequently relies on fair use, it seems to go out of its way to fight against fair use being used anywhere else. The International Intellectual Property Alliance (IIPA) (which is a mega trade group of intellectual property maximalist trade groups, including the MPAA, the RIAA, ESA, IFTA and AAP) has freaked out any time any other country in the world has sought to have American-style fair use. Over a decade ago IIPA flipped out when Israel’s fair use rules matched the US’s. The group and other surrogates have also fought American-style fair use in the UK and Australia after both of those countries explored implementing American-style fair use.

The IIPA has a playbook all set for any country (outside of the US) that is thinking about adopting US style fair use policies: it claims that because fair use relies heavily on judicial common law, no other country but the US can possibly have it, because it will lead to lots of litigation until the courts set the boundaries. Of course, this seems pretty silly, as there are easy ways around this (indeed, it’s why fair use kinda works fine in Israel). The latest country to explore implementing an American-style fair use is, as we reported last year, South Africa. Its copyright reform seemed quite smart and well-thought out.

And, of course, Hollywood absolutely couldn’t let that stand. Earlier this year, the IIPA included South Africa in its usual omnibus submission to the USTR for the Special 301 list, the ridiculous annual process by which big copyright holders tell the USTR what countries aren’t implementing the copyright laws they want, and the USTR tries to “shame” those countries into playing by Hollywood’s rules. In this year’s submission, the IIPA seems positively apoplectic that South Africa might implement American-style fair use. And, of course, it pulls out the bogus “so much litigation!” warning:

Most recently, the National Assembly of South Africa adopted legislation in December 2018 that also features a broad spectrum of vaguely delineated exceptions. On top of a set of extremely broad new exceptions and limitations to copyright protection (and the existing ?fair dealing? system), the new law adds a version of the U.S. ?fair use? statute that will allow judges to excuse certain uses from licenses. This version of ?fair use? can be applied to eight broad and unclear ?purposes? of use, such as ?scholarship, teaching and education,? and ?expanding access for underserved populations.? The proposed ?fair use? system lacks the decades of legal precedent that have served to define, refine, and qualify that doctrine in the United States. The effects of this provision, along with overlapping exceptions and limitations, will result in confusion and uncertainty about which uses of copyright works require licenses, and could hinder investment in and the development of new copyright services in South Africa. It will, in particular, imperil the legitimate markets for educational texts, locally distributed works, and online works in general. Taken as a whole, these provisions are inconsistent with South Africa?s international obligations since they far exceed the degree of exceptions and limitations permitted under the WTO TRIPS Agreement (the ?three-step test?).

First, kudos to the IIPA for at least admitting outright that South Africa is looking to implement a “version of the U.S. ‘fair use’ statute,” because I wouldn’t have put it past them to ignore the fact that this exists in the US and all of the IIPA members’ members have used it to build parts of their business.

But the claim that this is inconsistent with international obligations is utter hogwash. As we’ve discussed in the past, the “three-step test” is often used by Hollywood as a strawman pretending that it blocks users’ rights in copyright law. But that’s not true. If it was, then the US couldn’t even have the fair use system we do. But we do. So, no, the three-step test doesn’t prevent it.

Now, here’s the really fucked up part in all of this. While any competent US Trade Rep (USTR) would look at this and laugh off Hollywood’s usual nonsense and point out that if we have fair use here in the US, it’s pretty fucking rich to think that we should attack an ally for implementing the same law, that’s not what happened. Instead, just recently the USTR directly announced that because of these very concerns, it’s opening an investigation into South Africa’s intellectual property processes, and it could lead to the USTR kicking South Africa out of a very favorable free trade agreement (the Generalized System of Preferences (GSP)):

South Africa: USTR is accepting a petition from the International Intellectual Property Alliance based on concerns with South Africa?s compliance with the GSP IP criterion, in the area of copyright protection and enforcement.

This could lead to a huge change in South Africa’s access to the American market, potentially putting over $2 billion worth of South African exports at risk.

All because South Africa wants to implement a totally reasonable copyright plan that respects the public’s rights in a manner entirely consistent with current US law. And the US (by way of Hollywood lobbyists) wants to punish the country for that. This is a potentially huge and incredible situation which is not getting very much attention at all — which is just how Hollywood, the IIPA, the MPAA, and the RIAA want it.

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Companies: iipa, mpaa

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Comments on “US Government Threatening To Kill Free Trade With South Africa After Hollywood Complained It Was Adopting American Fair Use Principles”

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21 Comments
This comment has been deemed insightful by the community.
Gary (profile) says:

Copy Right or Wrong

All because South Africa wants to implement a totally reasonable copyright plan that respects the public’s rights in a manner entirely consistent with current US law.

Copyright law only serves corporate interests, not the public good. I think this article really drives that point home.
"Fair Use" is antithetical to corporate ownership of the commons.

Anonymous Coward says:

Re: Re: Re:

Because their government is the one helping to push the BS worldwide.

Make no mistake though, the US’s Fair Use exemptions are in the crosshairs of the copyright maximalists too, (can’t extract rent from every use of a work with those pesky laws around ya know), they just don’t want to shoot the golden goose just yet.

When the time comes the US will lose it’s Fair Use too, probably via a fast-tracked "free trade" agreement, but rights holders definitely don’t want other countries enacting Fair Use style laws of their own during the interim.

Anonymous Coward says:

Get the ACLU, EFF, or similar to sue. It’s blatantly illegal to try to stop a foreign country from importing protected speech into the United States especially using government pressure.

No one will likely have standing until a sanction is put in place of course but it’s probably a slam dunk win for South Africa, any of their negatively affected US trade partners, or any ordinary citizen affected.

Anonymous Coward says:

it blocks users’ rights in copyright law. But that’s not true. If it was, then the US couldn’t even have the fair use system we do. But we do. So, no, the three-step test doesn’t prevent it.

That’s faulty reasoning. Just because the USA is prohibited by treaty from doing something doesn’t mean the USA isn’t doing it. Like banning online gambling.

To know whether it’s allowed you’ll need to actually look at the three steps and see how USA-style fair use relates.

This comment has been deemed insightful by the community.
Anonymous Coward says:

when is the world going to realise and then stand up to Hollywood and the rest of the entertainment industries, whether in the USA or elsewhere, before the entire planet loses the Internet and the ability to progress in all things, in all ways without music and make believe thinking they have the rights to stop them? they have been holding the world to ransom for decades and doing whatever they can think of to get people locked up for doing what the industries know they should, but wont, while the underlying reality is that they want complete control of something that has been given to everyone, for free and is not theirs and theirs alone to use for their benefit only, while coddling up to whichever government it thinks will help it get that control! the industries are run by a bunch of self-interested, self-serving assholes who are not even interested in their own money makers but continue to hold the same arguments they had, which completely failed, about home video recorders!

Anonymous Coward says:

Re: But their argument is like a clock....

Eventually if they just keep repeating the same lie, odds are that eventually it will be right (just as a stopped clock is right twice a day, unless it’s digital, then it’s never right… so I’m guessing their argument is really more of a digital thing, and it will never be right no matter how hard you squint and try to make things fit).

Anonymous Coward says:

American tv companys use fair use to make film,s and documenatarys,
but apparantly those africans do not deserve to use it or have it as part of their copyright laws.fair use and the public domain helps small creators
and artists to make new content and storys and create new art.
Many big disney films are based on old folk tales and myths,
see frozen, cinderella ,sleeping beauty .
If something is legal in america it is wrong that big corporations
want it to be illegal in africa maybe to reduce possible competition
.
Remember the big film companys were against vhs video players
,the music industry was slow to see the benefits of digital downloads until steve jobs opened the app store and itunes was launched .

Anonymous Coward says:

Re: Re:

Remember the big film companys were against vhs video players

You may not have noticed that they basically won. Macrovision-immune VCRs became illegal to produce (although one could get a used 1980s VCR). Films are all DRMed, whether on "film", disc, or streaming, and it’s illegal to break that even for fair use. These policies have been exported worldwide. People still give those companies a lot of money.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re:

They did not win. They have a few laws that may get thrown out and available to anyone, free of charge, methods to bypass nearly any technical lock.

If/when a "it was fair use but DRM was bypassed" case ever goes to court I expect the law will be narrowed significantly or thrown out due to first amendment concerns.

Anonymous Coward says:

Re: Re: Re: Re:

That’s wishful thinking. We’ve had over 20 years to fight that in court, with little success so far (although Bunnie Huang does have a promising case). And while people "in the know" can bypass DRM, it still limits what most people can do. If copying a movie were a drag-and-drop operation we’d see a lot more copying. Documentary filmmakers have already said they’ve scrapped projects due to perceived risk of defending fair use.

This comment has been deemed insightful by the community.
That Anonymous Coward (profile) says:

So the last 3000 times we gave them exactly what they wanted or the world would end still wasn’t enough.

Pity the people we vote to elect seem to be beholden to corporate people who seem to have brain damage & have no problem screwing us in the process.

I can’t wait until someone manages to get the 9th Circuit to rule that this scene stole the look and feel of some other project & the entire industry just starts suing each other & stops meddling in the world.

Anonymous Coward says:

So… is Canada still on that USTR list? Because Canada has had Fair Use just as long as the US, and has common law — they BOTH inherited this from the UK, as did Australia and South Africa.

I’m just surprised that people still care about that list, and that other countries don’t just tell the US to play nice, or they’ll ignore ALL of their copyright protections.

Anonymous Coward says:

Re: Re:

I think in Canada it’s called fair dealing and it’s slightly different. Also, British common law generally doesn’t have as many use protections as the United States. That is, the US has more protected speech than other British common law systems in general.

2019 list

https://www.keionline.org/wp-content/uploads/2019_Special_301_Report.pdf

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