Does South Africa want public interest considerations for copyright limitations and exceptions at the WTO?

A few days ago (29th January 2020), the South African Government issued a Communication to the World Trade Organisation’s (WTO) Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS Council). The Communication titled “Intellectual Property and the Public Interest: The WTO TRIPS Agreement and the Copyright Three-Step Test” was issued to consult WTO Member States on the flexibilities available to Member States in crafting copyright limitations and exceptions within the principles and objectives of the TRIPS Agreement.

The crux of the Communication from South Africa
The South African Government posed specific questions for Member States’ consideration thus:

1) Does the three-step test constitute an indivisible whole to the extent that each of the three steps are to be considered together and as a whole in a comprehensive overall assessment?
2) What approaches have Members taken to reflect limitations and exceptions in their IP laws?

...communication for clarification?

Essentially, South Africa wants to know how far it may go in fulfilling the principles and objectives of Articles 7 and 8 of the TRIPS Agreement when it is crafting copyright limitations and exceptions. While Article 7 of the TRIPS Agreement require copyright protection to contribute to the promotion of technological innovation… in a manner conducive to social and economic welfare…”, Article 8 envisages that Member States formulate or amend their laws and regulations to “promote the public interest in sectors of vital importance to their socio-economic and technological development…”.

Comments
The Communication emphasises that limitations and exceptions such as fair use and fair dealing are not in conflict with the three-step test requirement under Article 13 of the TRIPS Agreement. [The three-step test requires that Members "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder”]. The Communication also mentions the WTO Panel’s interpretation of the three-step test in resolving the dispute between the EU and the US over section 110(5) of the US Copyright Act. The WTO Panel in that case held that the three-step test requests 3 separate, independent, cumulative tests for copyright limitations and exceptions.

Given this interpretation, it may be puzzling to see South Africa posing the question again to Member States through the TRIPS Council. Granted, many scholars (as acknowledged in the Communication) have disagreed with the WTO Panel’s interpretation and found it unduly focused on economic interests. It may therefore be helpful to hear what Member States think of the boundaries of the three-step test vis-à-vis public interest considerations. Also, this Africa Correspondent is of the opinion that the underlying issue that South Africa wants addressed is the question of whether the three-step test under the TRIPS regime admits a public interest approach - “in sectors of vital importance to (national) socio-economic and technological development…”.

But, why issue the Communication now?

As readers may recall, South Africa’s National Council of Provinces (NCOP) had in 2019 concurred with the redrafted version of South Africa's Copyright Amendment Bill, and sent same to the President for his assent. One of the contentious (if not the most contentious) provisions of the Bill was the “fair use” provision (Katpost here). Given this, why did South Africa not seek this clarification before adopting the Copyright Amendment Bill? This Kat can only say things: (1) the much-awaited Presidential assent to the Bill will not be coming anytime soon and at least, until the clarification sought in the Communication is received; (2) despite the Communication coming after the Bill has been adopted, it is as they say, better late than never.

Another “but”: Should there be international minimum standards for copyright limitations and exceptions? Or, are Member States better off with policy space enabled by general statements (like the three-step test) to craft copyright limitations and exceptions? In October 2019, WIPO held the International Conference on Copyright Limitations and Exceptions for Libraries, Archives, Museums and Educational & Research Institutions. The Conference was the end of the fact-finding and information gathering phase of the quest to provide for minimum standards in crafting limitations and exceptions for the specific institutions. Perhaps, South Africa wants to push for some minimum standards for copyright limitations and exceptions, generally? Which leads this Kat to another question: should the WTO (a trade regime) be the forum for such public interest “expedition”? That said; responses to the Communication might provide tips for the negotiation of the IP Protocol in Africa’s regional trade agreement –the African Continental Free Trade Area (AfCFTA).

It is expected that the Communication will come up for discussion at the next TRIPS Council meeting in early February 2020. This Kat can only hope that South Africa (and indeed, every Member States) takes cognisance of differences in development stages of Member States as it/they consider(s) “national approaches and experiences”.

Readers should stay tuned…