Copyright Reform

Campaign Contents

• Introduction
• Background to the case
• The Copyright Amendment Bill
• Our campaign to #EndTheBookFamine
• WorldBookDay Webinar 2021
• High Court Case – our heads of argument
• After the court order

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Introduction

Copyright reform and the campaign to #EndTheBookFamine for people who are blind or visually impaired

South Africa’s current Copyright Act (1978) currently makes it very difficult for people who are blind or visually impaired to convert published texts into accessible formats like braille, large-font, audio, Digitally Accessible Information System (DAISY) or other accessible formats. This has resulted in a Book Famine for people who are blind or visually disabled, with approximately fewer than 0.5% of published works available in South Africa in accessible formats.

The need for Copyright reform – now!

The apartheid era Copyright Act of 1978 infringes on the rights of persons with visual disabilities, in particular the rights to equality, dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice.

One of the main problems with the current Act is that it does not provide exceptions to copyrighted materials to allow persons to convert these published works into accessible formats such as braille, Digitally Accessible Information System (Daisy), audio, large print or other suitable formats for persons with visual disability. This has resulted in a Book Famine for persons with visual disabilities, constituting unfair discrimination. The Copyright Act has also resulted in:

• A lack of access to reading materials: Approximately less than 0.5% of publications are available in accessible formats for people who are blind or visually disabled in South Africa.
• Being forced to secure permission from the copyright holder: The current Copyright Act forces persons with visual disabilities to secure the permission of the copyright holder to convert the publication into accessible formats. But copyright holders often reject or ignore these requests, and it takes a long time.
• A costly and time-consuming process: When permission can be secured, converting an average novel of 300 pages into braille can take weeks, and costs up to R24,000, which is unaffordable for most.
• The prevention of cross-border exchange: Where braille master copies or ‘templates’ for many published works exist in other countries, the current Copyright Act in South Africa prevents cross-border exchange of accessible format copies of copyrighted texts. This limits access to reading materials and forces persons who are blind or visually impaired to reinvent the wheel at huge personal expense.

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The Copyright Amendment Bill – a lengthy legislative process.

Acknowledging some of these problems, government introduced a Copyright Amendment Bill (CAB) to parliament in 2015 and has committed to reforming it to bring it in line with our Bill of Rights and various international commitments. The CAB included a new section called 19D – which contains general exceptions regarding protection of copyright works for a person with a disability. This would allow persons who are blind or visually impaired to make or import accessible format copies of published works without the permission of the copyright holder, vastly improving access to reading materials.

But six years after the Copyright Amendment Bill (CAB) was introduced into parliament, the copyright reform process remains unresolved. With long delays, postponements and widespread debate surrounding the CAB already recorded, and the legislative process ahead looking to be convoluted, people who are blind or visually disabled will likely face a book famine for extended periods of time. This is even though 19D is uncontested and widely acknowledged as a step forward for constitutional rights for people with disabilities. The current Act also does not align with numerous international commitments, and delays South Africa’s ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

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The campaign to #EndTheBookFamine: BLIND SA and SECTION27 take government to court

BLIND SA, represented by SECTION27, approached the High Court of South Africa (Gauteng Division) to challenge apartheid copyright laws and fight for the human rights of persons who are blind or visually impaired.

We filed papers citing the Minister of Trade, Industry and Competition Ebrahim Patel, Minister of International Relations and Cooperation Dr Naledi Pandor, the Speaker of The National Assembly (Thandi Modise), the Chairperson of The National Council of Provinces (Amos Masondo) and President Cyril Ramaphosa as respondents, arguing that these stakeholders from government had failed to fulfil their constitutional and international obligations to persons with visual disabilities.

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World Book Day 2021 – Webinar on Copyright Reform

In this webinar, we explored the advocacy surrounding copyright reform that led up to us launching our court case. In it, panelists discussed questions including: “Why are South Africa’s Copyright laws barriers to the fulfilment of human rights, and what needs to be done to improve access to accessibly formatted reading materials? What are comparative international experiences from other countries in terms of the ratification of Marrakesh and law reform to remove copyright barriers?”

Our panel consisted of:

• Dr Sanya Samtani (University of Oxford) (Moderator)
• Ntshavheni Netshituni (BlindSA)
• Marcus Low (Spotlight)
• Dr Praveena Sukhraj-Ely (South African Department of Justice & Constitutional Development)
• Florence Ndagire (Ugandan human rights lawyer)

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The High Court Case

BlindSA and SECTION27 went to the High Court of South Africa (Gauteng Division, Pretoria) on 21 September 2021. The matter was heard on the unopposed roll before Judge Mbongwe, with none of the government departments listed as respondents opposing the matter.

Heads of Argument

Following our arguments, and the submissions of amicus curiae, Judge Mbongwe granted our draft order including the following:

• A declaratory order: declaring the current Copyright Act invalid and unconstitutional because it limits/prevents people with visual disabilities from accessing works under copyright in formats that they can read, and does not include provisions designed to enable access to works under copyright as envisaged by the Marrakesh Treaty;
•  A ‘reading in’ – or inclusion – of the proposed section 19D of the Copyright Amendment Bill (CAB) to the current Copyright Act to allow an exception to copyright for people with disabilities so that they can convert published works into accessible formats like Braille, large print, Digitally Accessible Information System (Daisy).

Judge Mbongwe said the following when granting the order:

“I am persuaded that the Copyright Act does indeed infringe and adversely impact on a variety of rights of persons particularly those with disabilities, specifically the visually impaired persons. I therefore find it just and proper, and in line with the Constitution, that the order sought which for all intents and purposes, in my view, provides the remedy to the wrongs and would bring perhaps a temporary remedy until the Constitutional Court confirms invalidity of the Act as it stands. In the period in between the rights at least would henceforth be protected. And the exchange of information or access to information will be available to all persons thus bringing the South African laws, so far as copyright is concerned, in line and harmonious with international law. For that reason the draft order… is made an order of this court.”

– Judge Mbongwe, High Court of South Africa (Gauteng Division), 21 Sept 2021

A victory for persons who are blind or visually impaired!

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After the court order: regulations, and the journey to the Constitutional Court

On 13 October 2021 BLIND SA filed an application in the Constitutional Court requesting the confirmation of a High Court order declaring the Copyright Act of 1978 unconstitutional for violating the rights of people who are blind or visually-impaired.

On 21 September 2021, the High Court agreed with BLIND SA and declared the Copyright Act to be unconstitutional to the extent that it limits persons who are blind or visually impaired from accessing accessible formatted material. While the High Court is able to make this ruling, section 172(2)(a) of the Constitution states that when any law is declared invalid, it must be confirmed by the Constitutional Court, and BLIND SA filed its application at the Constitutional Court to confirm the High Court’s order.

Regulations

The High Court is allowed, in the interim, to grant temporary relief while waiting for the Constitutional Court’s decision and has also ordered that section 19D of the CAB be read into the Copyright Act. In order for section 19D to take full effect, the Minister of the Department of Trade, Industry and Competition, Minister Patel, must publish regulations prescribing who may make, reproduce and distribute accessible format published works to persons with disabilities, including those who are blind or visual impaired, without the permission of the copyright holder. We wrote to the Minister requesting the publication of regulations.

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Constitutional Court Heads of Argument