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Update: On 20 September 2024, in Washington DC, Government of National Unity Trade, Industry & Competition Minister Parks Tau (active on X) posted about two meetings with Democratic Party congressional representatives Terri Sewell and Earl Blumenauer. Apparently, the Copyright Amendment Bill was discussed in the context of ongoing negotiations about “Agoa renewal”.
This is the first time the Bill’s relevance to South Africa’s participation in Agoa has been mentioned officially in the media by anyone in national government or Parliament since the September 2023 hearing reported below.
A recent US Foreign Affairs Committee hearing drew attention to significant gaps in two South African policy experts’ understanding of their country’s status as a beneficiary of the African Growth and Opportunity Act (Agoa). One was journalist and broadcaster Redi Tlhabi; the other Good Governance Africa CEO Chris Maroleng. Fortunately, fellow panellist John Hopkins University Adjunct Professor
Anthony Carroll stepped into the breach. Which shouldn’t have been necessary.
To be fair, in most other respects both Tlhabi’s and Maroleng’s testimonies on “the current US-South Africa bilateral relationship” were brave and insightful – especially because it was South Africa’s foreign policy that was really under “examination”. Republican Congressman John James made that clear in his opening statement when he expressed concern about South Africa’s “clearly deepening relationship with Communist China and Putin’s Russia”. James also drew attention to policy choices he believes are responsible for “the South African people … (being) more dependent than ever on a state that fails to consistently provide even the most basic services … nearly 30 years into ANC rule”. He blamed this on a preoccupation with “perpetuating a system of elite capture built on corruption”.
Carroll was the first to present his testimony, which included a brief reference to Agoa. In his view, “No country has benefited from … (the programme) as much as South Africa”. Conceding that US diplomatic relations with South Africa have “floundered in such areas as intellectual property rights”, Carroll said he would nevertheless “oppose making it ineligible for Agoa”. He was followed by Tlhabi – who didn’t mention Agoa at all – and Maroleng, who simply referred to Agoa’s role in “boosting” South African “exports in the automotive and agricultural sectors”.
During the hearing’s question-and-answer session, Democrat Congresswoman Sheila Cherfilus-McCormick asked all three panellists what “specifically are some of the conditions” they would “like to see South Africa abiding by, especially for its continued participation in Agoa”. Which is where things began to fall apart. By focusing his response on the “conditionality” of Agoa eligibility, Maroleng appeared to have confused the programme with US Aid.
Agoa gives eligible sub-Saharan countries quota and duty-free entry to US markets for certain goods, expanding benefits under the generalised system of preference (GSP) programme. As Maroleng should know, when it comes to US and European trade there’s no such thing as a free lunch – especially for countries as unapologetically corrupt as many on the African continent. As he may also know, few if any aid packages come out without “conditionalities” for precisely the same reason.
During their testimonies, both Maroleng and Tlhabi had already spoken candidly about what they believe to be a tendency for US foreign relations with African countries to be underpinned by conditions making certain policy options non-negotiable and others off limits. Perhaps it was in this context that Maroleng called for “a more nuanced approach” towards US trade relations with South Africa during times of “strategic competition on the African continent”. In his view, an approach with less “conditionality” and more “private sector collaboration” would signal a move away from the “aid-centric” arrangements historically taken by the US.
Begging the question, “Does ‘private sector collaboration’ come with no strings attached?” Nobody asked, but whatever the case Maroleng didn’t answer Sherfilus-McCormick’s question – possibly prompting Democrat Congresswoman Sydney Kamlager-Dove to repeat it, albeit in different words directed to Carroll. “If we were to amend Agoa in its reauthorisation, what enhancements do you believe would increase its utilisation?” she asked, also inviting Carroll to share his perspectives on “what might be the effect of including a digital trade component that reduces barriers to online commerce on the continent”.
His response focused on “transitioning” towards developing a “more durable” bilateral trade relationship with South Africa, rather than placing so much emphasis on “renewable” arrangements such as Agoa. “In the digital space”, he spoke of “a lot of controversy, … fear and protectionism in South Africa” apparently “inherent” in “discussions” on which he chose not to elaborate. Perhaps there wasn’t enough time. Nobody on the committee asked where these “discussions” are taking place or with whom. However, when Carroll urged the US administration to “continue” applying “pressure” in its efforts to promote “the benefits of open access in digital trade”, he may inadvertently have revealed the source of the “controversy”.
Could it be the Copyright Amendment Bill? Quite possibly, because Kamlager-Dove then turned to “South Africa’s blossoming creative industry” – which she believes is “ripe for greater engagement” given that it employs “nearly 7% of the national workforce and is supported by foreign investment”. Unfortunately, however, when Kamlager-Dove asked Tlhabi for her perspectives on how “deepening US engagement and support for South Africa’s homegrown film and television industry could help strengthen the bilateral relationship”, the journalist and broadcaster floundered. This despite claiming to be “passionate” about the issue.
Passion means commitment – and commitment means finding out as much as you can about the focus of your interest. So, why didn’t Tlhabi know that “South Africa’s homegrown film and television industry” has been at the heart of countless representations in Parliament during intermittent hearings on the Copyright Amendment Bill since 2021. Caught off guard, she resorted to a generalisation that included references to South African “artists” being “very political”. “They care about society,” she said, adding that “they produce output that constantly shifts the needle”.
According to Tlhabi, in reviewing its relationship with South Africa the US should “remember those people” – who are “innovative”, “entrepreneurial” and have “contributed to the global market of ideas”. By investing in South Africa’s creative industries, the US will “unleash” the country’s “potential”, “create jobs” and “absorb even more of the township youth into the labour market”. Which is where the Copyright Amendment Bill and its sister, the Performers’ Protection Amendment Bill, come in.
Some local and international lobbyists supporting the Bills do so precisely because they believe the Bills will curb what they perceive to be the exploitative, self-serving contractual arrangements apparently associated with some US investments in South Africa’s creative industry. Others are concerned that, by interfering with the right to freedom of contract, the Bills may drive existing international investors away, including those from the US. If they’re right – and only time will tell – the local film and television industry will suffer.
Tlhabi should have known about this. She should have known about divergent views on the Bills in the context of Agoa. Although to be fair, two days later, in an interview with Stephen Grootes on Newzroom Afrika, Tlhabi did say, “I must be honest. I was not prepared”. She was referring expressly to US Foreign Affairs Committee members’ questions on Agoa and Pepfar, which is the US President’s Emergency Plan for AIDS Relief. At the time of writing, Pepfar was due to expire on 30 September and its reauthorisation very much in the balance.
Agoa’s reauthorisation falls due in 2024. Meanwhile, a report on the annual review of beneficiary countries’ eligibility is expected to be published next month. Perhaps Tlhabi was under the impression that – Johannesburg having been confirmed as this year’s Agoa Forum venue – South Africa has passed with flying colours. Not necessarily so, according to Trade & Industry Minister Ebrahim Patel. Coincidentally, on the same day as the US Foreign Affairs Committee hearing in Washington – but nine hours ahead given the difference in time zones – the Minister briefed members of a joint parliamentary committee meeting on “access to the US market” and Agoa.
In his presentation, the Minister conceded that “copyright laws” have been among the “immediate challenges raised by US corporations” during annual reviews of South Africa’s eligibility to continue benefiting from the programme. He had already referred to the “protection of intellectual property” as one of several conditions to be met by prospective Agoa beneficiaries. Later during the briefing, responding to a questions from MPs Simanga Mbuyane (ANC) and Wayne Thring (ACDP), the Minister said that copyright law had also “come up” in discussions on the US government’s generalised system of preference.
Posts alerting Tlhabi to this on social media, asking for her thoughts, were ignored. Admittedly, at the time she was inundated with responses to her testimony in Washington – not all of them flattering. Perhaps Tlhabi simply didn’t notice those with legitimate questions. Although she responded with lightning speed to an SAfm News post reporting Minister of International Relations & Cooperation Naledi Pandor’s “displeasure” at the US Congress Foreign Affairs Committee’s choice of panelists at the hearing. Rather spitefully, Tlhabi referred to an “ill-informed individual on the ‘foreign desk’ (who) must have called” asking the Minister to comment – and “a not-so-bright journalist” who didn’t do their “homework”. Which is a bit rich, coming from someone who didn’t do her own.
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