CONSTITUTIONAL COURT JUDGMENT ON COPYRIGHT ACT A MOMENTOUS VICTORY FOR PERSONS WHO ARE BLIND AND THEIR ACCESS TO BOOKS
BLIND SA and SECTION27 celebrate historical judgment, which finds the Copyright Act unconstitutional for unfairly discriminating against persons with visual disabilities, ending the Book Famine!
21 September 2022, Johannesburg – BLIND SA and SECTION27 celebrate the Constitutional Court’s historic judgment which confirms that the Copyright Act of 1978 is unconstitutional for limiting access to reading materials in accessible formats for persons who are blind or visually impaired. This judgment vastly and immediately improves access to books in accessible formats for people who are blind. The judgment also vindicates their rights to equality, dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice.
In a unanimous judgment written by Acting Justice David Unterhalter and delivered by Justice Jody Kollapen, the Constitutional Court found “that those with print and visual disabilities suffer from a scarcity of access to literary works that persons without these impairments do not” due to the Copyright Act, which therefore “constitutes unfair discrimination” on the basis of disability. Reflecting on the urgency of the need to accessibly formatted books, the judgment stated: “persons with print and visual disabilities should not have to wait further to secure a remedy.”
The highest court in the country has therefore ordered Parliament to remedy the constitutional invalidity of the current Act within 24 months. As an interim relief the court has read-in – or included – a provision that immediately permits blind or visually impaired persons to convert books into accessible formats without requiring the authorisation of the copyright holder.
This judgment not only compels parliament to ensure that copyright legislation in South Africa provides for accessible format shifting within two years, but comprehensively affirms the rights of people living with disabilities and orders immediate relief so that they can access books in formats they can read from today.
A summary of the judgment was read out at the Constitutional Court by Justice Jody Kollapen to a gallery of elated activists from BLIND SA and SECTION27. This favourable judgment represents the culmination of years of activism from BLIND SA, SECTION27 and other partners to challenge South Africa’s outdated copyright laws, which have for decades restricted access to reading materials for persons who are blind.
Jace Nair, CEO of BLIND SA, enthusiastically remarked after the judgment was delivered: “We are ecstatic that we have a judgment that provides for the exceptions that we have been advocating for so long. We would like to thank the Constitutional Court for recognising the impact this violation has had on the lives of blind and partially sighted persons for decades.”
The Court categorically determined that the Copyright Act had, until now, “plainly infringed” the rights to equality, dignity, basic and further education, freedom of expression and the rights to language and to participate in the cultural life of one’s choice. The paragraphs of the judgment which relate to the impact of copyright on the rights to dignity and education are particularly noteworthy:
Para 71: “… The challenge made by BLIND SA on the basis of the right to human dignity in terms of section 10 of the Constitution is well founded. Access to the vast universe of knowledge and imagination that is to be found in literary works is a condition for advancement. It also promotes an engagement with the world of ideas, and that is an important attribute of the well-being of persons. That those with print and visual disabilities should be so radically compromised in the access they enjoy to literary works by reason of the requirement of authorisation is to heap indignity upon the adversities these persons face.”
Para 73: “Finally, the evidence marshalled by BLIND SA establishes that those with print and visual disabilities struggle to secure books in accessible format copies that they require for their education. Children, and especially poor children, cannot secure the textbooks they require. Others who are admitted to university cannot access the articles and books they need, a substantial impairment to the benefits of a higher education.”
Prior to this landmark judgment, persons who are blind or visually disabled would have had to secure permission from copyright holders to convert books into accessible formats like braille. BLIND SA and SECTION27 took government to court for this difficult, time consuming and often costly process which created a ‘Book Famine’ for persons with visual disabilities and unfairly opened them up to criminal and civil liability if they converted books into accessible formats without securing permission.
One year ago, to the day, BLIND SA had their day in court to fight for access to books in accessible formats when the High Court of South Africa (Gauteng Division, Pretoria) found that the Copyright Act was unconstitutional for violating the rights of persons with disabilities. BLIND SA and SECTION27 then approached the Constitutional Court to confirm this finding of invalidity of the existing Act. On 12 May 2022, we argued for urgent changes to the Act so that persons with disabilities can easily convert books and other reading materials into formats they can read, such as braille, without needing the permission of the copyright holder.
Finding in our favour, the Constitutional Court has clarified various definitions concerning an exception to copyright for persons with disabilities and is, in effect, giving blind persons access to thousands of books with immediate effect. Our hope now is that government will follow on the lead of the Constitutional Court Judgment with all haste by finalising the Copyright Amendment Bill and ratifying the Marrakesh Treaty.
Editor of Spotlight, Marcus Low – who is blind and provided and a supporting affidavit for the case – remarked: “It is an historic judgement that will change lives by immediately improving access to books in accessible formats. The affirmation of the rights of persons with disabilities is moving and overdue. This judgment is a reminder of how the Constitution holds the better angels of our natures.”
BLIND SA and SECTION27 intend to interrogate the judgment further. A more detailed analysis on the full impact of this judgment on the lives of persons who are blind or visually impaired will be released soon.
BLIND SA and SECTION27 thank our counsel in this case, Advocate Jonathan Berger, Advocate Faranaaz Veriava and Advocate Tauriq Moosa, as well as our legal advisor Dr Sanya Samtani.
This judgment continues the Constitutional Court’s long history of protecting the rights of the vulnerable, and immediately grants persons with disabilities access to books in formats that they can read. This is a victory for communities of disabled persons and a vindication of many of the human rights that are central to our Constitution. The Court found that indeed, braille should be no crime, and has ended the book famine for persons who are blind or visually disabled!
You can read the Constitutional Court’s judgment here.
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