Validating South Africa’s copyright reform through the lens of US GSP: The need to abolish reciprocal requirements

Image: Getty, Metamorworks/iStock
Image: Getty, Metamorworks/iStock

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that identified certain challenges facing copyright-based industries, such as poor governance, reliance on the old and outdated Copyright Act 98 of 1978, which cannot govern the effective exploitation of copyright in the digital era, and limited access to copyrighted materials for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.


  • The proposed amendment to South Africa’s Copyright Act No. 98 of 1978 aims to promote effective governance of copyright exploitation and access to copyright works in the digital era.
  • The International Intellectual Property Alliance (IIPA) has argued before the US Trade Representative (USTR) that certain terms of the Copyright Amendment Bill B13-2017 (CAB) will not promote adequate and effective protection of the intellectual property rights of foreigners. The USTR is reviewing South Africa’s eligibility as a beneficiary country of the US Generalised System of Preferences (GSP).
  • Despite the fact that the CAB aims to address the peculiar socio-economic development needs of South Africa’s economy, past eligibility review experiences give the impression that South Africa could be suspended from the GSP programme and/or its market access benefits could be withdrawn unless it meets the demands of the IIPA.
  • The threatened suspension or withdrawal of South Africa’s eligibility and/or benefits highlights the vulnerability of South Africa and any other African country that benefits from the unilateral trade preferences offered by the US – a scenario made possible by, among others, a lacuna in the terms of the Enabling Clause.
  • The proposed criterion by the US for determining whether or not a country should declare itself a developing country and benefit from the World Trade Organisation’s (WTO) special and differential treatment provisions, if adopted, will make it difficult for South Africa and some African countries to reap the benefits of such provisions, including those benefits under the Enabling Clause.
  • This calls for emphatic consideration of national investment priorities aimed at promoting export diversification through innovation and production of value added goods.
  • The Africa Group, as opposed to individual African countries, should support the on-going debate at the WTO regarding special and differential treatment provisions and use the opportunity to support the changes necessary to address the gaps in the Enabling Clause with the view to make them legally binding.    

14 May 2020