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. The respondents in the case – the Minister of Trade, Industry and Competition, the Minister of International Relations and Cooperation, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and the President of the Republic of South Africa – are not opposing the application.
This Constitutional Court application comes a few short weeks after a hearing held in the High Court on 21 September 2021 in which BLIND SA challenged the Copyright Act for failing to allow people who are blind or visual impaired to convert published works, such as books, into accessible formats without the permission of the copyright holder. Many countries across the world have included this kind of exception into their law for persons with disabilities, and its absence in South Africa has contributed towards the so-called “Book famine”, in which less than 0,5% of published works in South Africa are made available in accessible formats such as Braille.
In the High Court proceedings, BLINDSA argued that the lack of an exception violates the rights of people who are blind or visual impaired, and particularly their rights to dignity, equality, education, access to information, and participation in the cultural life of one’s choice.
BLINDSA also argued that section 19D of the Copyright Amendment Bill (“CAB”) should be read into the Copyright Act to solve this problem in our law. Section 19D of the CAB creates an exception allowing persons to convert, reproduce and distribute copyrighted works in accessible formats to persons with disabilities. Including section 19D in the Copyright Act will also allow South Africa to sign and ratify the ‘Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled,’ which provides for the cross-border sharing of accessible format published works from other countries. This will provide significantly greater access to published works for persons who are blind or visual impaired in South Africa.
On 21 September 2021, the High Court agreed with BLINDSA and declared the Copyright Act to be unconstitutional to the extent that it limits persons who are blind or visually impaired from accessing accessible format 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 has now filed its application at the Constitutional Court to confirm the High Court’s order.
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. However, 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.
To help achieve this, SECTION27, on behalf of BLIND SA, has written to Minister Patel and urgently requested that he begin the regulation-making process. The Regulations are necessary to give practical effect to the court order and to ensure that copyright barriers are removed for blind and visually impaired persons. SECTION27 has not yet received a response. Demichelle Petherbridge, Attorney at SECTION27 explains, “until the Minister Patel publishes these regulations, the constitutional rights of people who are blind or visually impaired will continue to be severely limited.”
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