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 8 September 2021, Johannesburg – BlindSA, represented by SECTION27, is going to court to fight for the rights of people who are blind or visually impaired by asking the court to amend the apartheid era Copyright Act for greater access to reading materials in accessible formats. The case will be heard in a virtual sitting of the High Court of South Africa (Gauteng Division) on 21 September 2021.

People without visual disabilities can access books, journals, newspapers, and other published works in formats that they can read. For people with visual disabilities, however, South Africa’s copyright regime represents a huge barrier to accessing the same published works. The current Copyright Act of 1978 does not allow for exceptions for copyright, and makes it difficult for people with visual disabilities to convert published works into accessible formats such as braille. As a result, persons who are blind or visually impaired must often take steps to identify copyright holders and request their permission to convert their works. This can take an unreasonably long time, while running the risk of not being granted permission. We will argue that the current Act constitutes unfair discrimination. Under the current copyright regime, many copyright holders deny requests for format shifting, which limits the library of reading materials that people with visual disabilities can access, with less than 0.5% of published works available in accessible formats in South Africa. By limiting cross-border exchange of suitably formatted published works, people who are blind or visually impaired are forced to reinvent the wheel by converting materials domestically from scratch, often at great personal expense. The current Act therefore infringes on the rights to equality, dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice for people with visual disabilities.

The national legislature has acknowledged the unconstitutionality of the current Act and has committed to reforming it to bring it in line with our Bill of Rights and various international commitments. The Copyright Amendment Bill (CAB) includes a section called 19D which allows general exceptions regarding protection of copyright works for people with disabilities. This section would allow people with disabilities to develop or import accessible format copies of published works without first having to secure 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.

So while parliament continues to debate the CAB with no end in sight, the current copyright regime has negative impacts on people’s lives and rights: people who are blind and visually disabled continue go without thousands of the books, journals, textbooks and other published works that sighted people can access.

For these reasons, BlindSA and SECTION27 are asking the court to grant an order to temporarily ‘read in’ or include section 19D to the current Copyright Act with immediate effect, so that people who are blind can start accessing reading materials in suitable formats as soon as possible. If the discrimination inherent in the Copyright Act is not resolved by parliament within 12 months, we have asked the court to make the inclusion of 19D permanent while the reform process continues. We are also asking that government ratify the Marrakesh Treaty. These measures would increase access to reading materials and reverse decades of unfair discrimination against persons with visual disabilities.

The matter will be heard on the unopposed motion roll. The International Commission of Jurists, Media Monitoring Africa and ReCreate Action have applied to be admitted as amicus curiae (friends of the court) in the case.

Further details about how to join the virtual court hearing will be made available closer to the time.

You can read our legal papers here: 8 September is globally recognised as International Literacy Day, and we reiterate the importance of copyright reform to increased literacy for people who are blind or visually impaired. Although government has committed to making textbooks available in braille or accessible formats in schools, literacy extends much further than textbooks alone. Until we have meaningful copyright reform so that people with visual disabilities can access entire libraries of published works in accessible formats, literacy and human rights will be negatively impacted.

#EndTheBookFamine #EqualAccess2Braille #Pass19D

For media queries, contact: Julia Chaskalson (SECTION27) 0834402674

Jace Nair (BlindSA) 0609670258

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