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DEAR PARLIAMENT, COPYRIGHT LAW MUST NOT LIMIT HUMAN RIGHTS – PASS THE COPYRIGHT AMENDMENT BILL URGENTLY!

1 February 2022, Johannesburg — BLIND SA and SECTION27 have made joint submissions to the Portfolio Committee on Trade, Industry and Competition on the Copyright Amendment Bill (CAB) following another call for public comments on the CAB made in November and December 2021. We urge parliament to release all future calls for public comment in an accessible format for meaningful democratic participation from all groups in society.

The CAB, drafted to rectify the current apartheid-era Copyright Act of 1978, has been debated and discussed in Parliament for more than a decade already. It is crucial that the legislative process for the CAB be resolved urgently so that people with disabilities, learners and scholars can all access works under copyright immediately.

In our court challenge to the current Copyright Act, we won an important victory for persons with visual disabilities: in September 2021, the High Court ordered that proposed section 19D of the CAB be “read in” to the current Act so that people with disabilities can access and convert works under copyright into accessible formats immediately. This order is set for a confirmation hearing at the Constitutional Court later this year. While this judgment was an important victory for persons with visual disabilities, including blind learners, broader reforms to the apartheid-era Copyright Act are still needed. The Minister for Trade and Industry has already said that the process of copyright reform has undergone extensive public consultations – the time has now come to pass the Bill and effect substantive and wide-ranging copyright reform, which remains crucially necessary to promote and protect the rights to equality, dignity, culture, freedom of expression and education for all.

In our joint submissions – available here – we go into detail about the latest round of proposed amendments to the CAB, and the need for parliament to put the promotion of the Bill of Rights first in their deliberations. In a society as unequal as ours – with long legacies of discrimination against people with disabilities and learners from previously disadvantaged communities – it is crucial that the CAB be finalised urgently to rectify these decades of discrimination and meaningfully provide equal access to educational and cultural materials for all.

Our submissions recommend the following:

  • In terms of accessible format shifting, the proposed new definition of ‘authorised entities’ must be interpreted constitutionally to give effect to the Bill of Rights and the vision of the Marrakesh VIP Treaty, so that organisations like BLIND SA can serve its constituencies;
  • Regarding cross-border import and export of materials, proposed additions that would impose onerous investigative obligations upon these ‘authorised entities’ to actually know who is using the work before they share the materials is not in line with the Marrakesh VIP Treaty – these additions impose further burdens upon people serving people with disabilities that do not exist for the exercise of other provisions that fulfil the Bill of Rights, likely amounting to unfair discrimination on grounds of disability;
  • Proposed additions to the CAB pertaining to anti-circumvention of technological protection measures must remain subject to exceptions for people with disabilities and for educational purposes in order to ensure the constitutional rights to education, equality, dignity, culture and freedom of expression are protected;
  • The introduction of the phrase ‘lawfully acquired’ and its corresponding definition is retrogressive and limits rights in the Bill of Rights, as the definition is too narrow and excludes library use, for instance;
  • Proposed deletions of purposes such as research, scholarship, teaching, and time and device shifting risk limiting access to educational materials such as recorded lectures during Covid-19 and uses that are not covered by the educational and academic reproductions provision;
  • Regarding accessing educational and cultural materials, the ‘three-step test’ proposed for educational and academic activities is inappropriate and impractical; rather, the ‘fair practice’ standard is appropriate and should be retained;
  • The proposed amendments regarding library and museum use must be reversed to ensure that everyone can access educational and cultural materials from libraries and other research institutions, especially in crises requiring remote learning such as the covid-19 pandemic and UCT Library fire of 2021.

BLIND SA and SECTION27 are hopeful that Parliament will engage meaningfully with these submissions and conclude its deliberations speedily so that copyright law no longer acts as a barrier to the rights to equality, dignity, freedom of expression, access to educational and cultural materials and other human rights.

You can read our submissions here: https://section27.org.za/wp-content/uploads/2022/01/BlindSA-SECTION27-submissions-CAB-28.01.22.pdf

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