Section27 will argue in court this week that the we will argue that the Copyright Act violates the constitutionally recognised human rights to equality, dignity, basic and further education, freedom of expression and participation in the cultural life of one’s choice for people with blindness or visual impairments and is invalid to that extent, writers Mila Harding.
According to the Constitution, South Africa was envisaged to be founded on the values of “…human dignity, the achievement of equality and the advancement of human rights and freedoms.”
The new state was tasked with putting in place laws and policies to advance the Constitution, and removing past discriminatory laws that hindered the realisation of the rights in the Bill of Rights. Section 9(4) of the Constitution in particular, states that legislation must be enacted to ensure unfair discrimination is prevented or prohibited. Despite this, 25 years after the enactment of the Constitution, the rights of people with blindness or visual impairments are violated by the archaic Copyright Act of 1978, which prevents them from fully realising their human rights.
After decades of advocating for copyright reform, Blind SA, represented by Section27, is approaching the High Court to make an order that the Copyright Act is unconstitutional and discriminatory.
On 21 September 2021, we will argue that the Copyright Act violates the constitutionally recognised human rights to equality, dignity, basic and further education, freedom of expression and participation in the cultural life of one’s choice for people with blindness or visual impairments and is invalid to that extent. Blind SA further asks that the court give an order “reading in” an exception to copyright for people with visual impairments into the Copyright Act.
The Copyright Act grants the holder of a copyright over a work close to an exclusive power over the use, reproduction, adaption, or broadcast of the work. However, copyright law that is compatible with our Constitution should recognise the need to limit the exclusive rights of copyright holders in some cases. Enabling the study, enjoyment, and adaption of works is crucial to people’s personal development as well as to the development of the creative landscape. Whether people can access works is inherently linked to their rights to education, freedom of expression and participation in cultural life. This, in turn, means that copyright also affects people’s rights to equality and human dignity.
Therefore, in order to limit the exclusive powers of copyright holder, copyright laws across the world often provide for “exceptions” – essentially allowing the use of a copyright work without the permission of the copyright holder. In our Copyright Act there are several limited exceptions to copyright. However, conspicuously missing from the Copyright Act is an exception to allow people with blindness or visual impairments to convert, reproduce, or distribute copyrighted works into a format they can read without the copyright holder’s permission.
This makes it very difficult for people with blindness or visual impairments to access literary works in readable formats for them.
There are a range of technologies, new and old, that can be used to convert written works into readable formats for people with blindness or visual impairments. These include converting books into braille, converting books into an electronic format, enlarging the font of text to make it readable, or converting the text of a book to audio. However, the current Copyright Act makes shifting the format of a literary work unlawful without the copyright holder’s permission. Permission from the copyright holder is also needed for organisations that are dedicated to promoting access to literary works for people with blindness or visual impairments, such as Blind SA, to distribute or reproduce accessible format copies.
Obtaining this permission often takes a very long time, and there is no guarantee that the copyright holder will grant permission. This has led to a scenario where less than 0,5% of published works are available in an accessible format for people with blindness or visual impairments in South Africa. If there was an exception in the Copyright Act for people, then the arduous process of obtaining the consent of a copyright holder would not be necessary for a person with a blindness or visual impairments to shift the format of a work, facilitating improved access to literary works and thus removing an obstacle to the realisation of the rights of people with blindness or visual impairments.
The inclusion of an exception in copyright for people with blindness or visual impairments is not controversial. Numerous states and territories that are members of the World Intellectual Property Organization (including the United States, India and the EU) have adopted the 2013 Marrakesh VIP Treaty.
The Marrakesh Treaty places an obligation on members of the Treaty to ensure that there is a limitation or exception in their copyright laws that allow format-shifting, distribution and reproduction of copyright works in accessible formats for people with blindness or visual impairments. It also permits the exchange of the works across borders – meaning that if an accessible format book has been made in one country, it may be distributed to people with blindness or visual impairments in another country.
South Africa does not currently allow for cross-border exchange of accessibly formatted copies of works that have been made without the permission of the copyright holder, meaning that people who are blind or visually impaired must convert works that already exist in accessible formats – essentially reinventing the wheel, at great personal cost.
South Africa has expressed that while it intends to implement the Marrakesh Treaty, it first needs to amend the Copyright Act to provide an exception for people with blindness or visual impairments. An amendment providing such an exception nearly came to fruition when the legislature passed the Copyright Amendment Bill (CAB) in 2017. Clause 20 of the CAB provided for the insertion of section 19D, which essentially implements the provisions of the Marrakesh Treaty. However, President Ramaphosa declined to sign the CAB into law – citing constitutional concerns regarding provisions that were unrelated to section 19D. Now, copyright reform is in limbo, with no clear indication as to when an amendment to the Copyright Act will occur.
In the meantime, the rights of people with blindness or visual impairments continue to be hampered by the lack of an exception in the Copyright Act. However, this obstacle to access to literary works for people with blindness or visual impairments may soon be removed if the courts rule in favour of Blind SA in its legal challenge against the Copyright Act. The court “reading in” an exception by inserting section 19D of the CAB into the Copyright Act would facilitate access to books and other works for persons with blindness or visual impairments. The case is being described as a potential “watershed moment” for the vindication of the rights of blind or visually impaired people.
In this regard, the International Commission of Jurists have been admitted to the case as amicus (a friend of the court) to assist the High Court in interpreting the rights of people with blindness or visual impairments harmoniously with international law – including the Marrakesh Treaty.
Further, Media Monitoring Africa (MMA) has applied to be admitted as amicus, to make submissions to the High Court regarding the right of people with blindness or visual impairments to freedom of expression and how copyright law in South Africa makes accessing this fundamental right more challenging, the importance of this right in the digital age, and how the reading in of section 19D appropriately balances the rights of copyright holders against the rights of people with blindness or visual impairments.
It is promising that a significant and unfair obstacle to a host of constitutional rights that people with blindness or visual impairments continue to face may finally be removed by the court.
South Africa would then also be able to ratify the Marrakesh Treaty, facilitating access to significantly more literary works than are currently available to people with blindness or visual impairments in South Africa. This would be a meaningful step towards the type of country the Constitution envisages – where all people’s dignity, freedom, and equality is fostered and promoted.
– Mila Harding is a legal researcher at Section27.
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