On Thursday, 28 November 2024, the Constitutional Court will urgently hear Blind SA’s case, requesting that exceptions to copyright that were previously read into the Copyright Act, be resuscitated. These exceptions would allow persons who are blind and visually impaired to convert books into formats, like braille, without the consent of the copyright holder. In support of the case, Blind SA, together with SECTION27, Recreate, Right to Know and SADTU, will hold a picket at the court on the day.
On 9 October 2024, Blind SA, represented by SECTION27, launched an urgent case in the Constitutional Court in the matter Blind SA v President of the Republic of South Africa against the President for his failure to sign the Copyright Amendment Bill (CAB) by 21 September 2024. This was a deadline the Constitutional Court imposed on Parliament in 2022, when Blind SA challenged the constitutionality of the Copyright Act 98 of 1978 for discriminating against persons who are blind and visually impaired by limiting their access to reading materials in formats such as braille or large print.
In that case, the Court ordered Parliament to amend the Copyright Act by 21 September 2024 to include exceptions for persons who are blind and visually impaired. These exceptions will allow for the conversion of materials into accessible formats without the consent of the copyright holder. In the interim, the Court crafted its own exception for persons who are blind or visually impaired, section 13A, which was read immediately into the Copyright Act while Parliament amended the Act. The exception read into the Copyright Act by the Court in 2022 was valid until 21 September 2024.
Parliament made the necessary amendments through draft legislation called the Copyright Amendment Bill (CAB), which also revised many other aspects of the Copyright Act and sent this to the President for signature in February this year. When the President failed to sign the CAB by the 21 September deadline, Blind SA launched urgent litigation requesting that he be compelled to sign the CAB, alternatively, that the court-crafted exception, section 13A, continue to be read into the Copyright Act until the CAB is signed.
On 16 October 2024, the President referred the CAB to the Constitutional Court in the matter Ex Parte President of the Republic of South Africa, which stems from reservations he expressed in 2020 about specific aspects of the CAB. This referral requires the Court to determine whether Parliament has adequately addressed the President’s concerns in the CAB and is limited to investigating only those provisions related to these. If the Court finds any of these provisions to be unconstitutional, it will refer the CAB back to Parliament to correct the defects.
The President’s referral of the CAB to the Court means that the CAB cannot be signed until the Court decides on the constitutionality of those provisions highlighted by the President and, if necessary, only once Parliament has attended to any issues the Court raises.
As such, Blind SA amended its relief and is now only requesting that the court-crafted section 13A exception be resuscitated so that it remains in effect until the President signs the CAB.
Earlier this month, the court issued directions indicating that Blind SA’s case would be heard together with the President’s referral of the CAB. However, new directions were issued on 20 November stating that these two matters will now be heard separately, with only Blind SA’s case proceeding on 28 November. The President’s referral matter will be heard on 19 and 20 February 2025.
If the court-crafted exception is resuscitated and, once again, read into CAB, it will not only remove barriers that persons who are blind or visually impaired have experienced for decades when trying to convert materials into formats they can read, but will also allow South Africa to ratify the Marrakesh Treaty. This treaty will allow persons who are blind or visually impaired in South Africa to engage in the cross-border exchange of reading materials and will open up access to hundreds of thousands of titles in accessible formats, moving us one step closer to ending the book famine in South Africa.
Please note: While Constitutional Court hearings are open to the public, journalists who wish to record any part of the proceedings, take photos or conduct interviews at the court must request permission from the court director, Ms Zoleka Sondlo, at the following:
Tel: 011 359-7459
Email: Sondlo@concourt.org.za
For any media queries, please contact:
Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636
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