Submissions on Copyright Amendment Bill [B13D-2017]: presented before the National Council of Provinces on 27 January 2023

1. Executive summary ……………………………………………………………………………………………………. 1
2. Introduction ………………………………………………………………………………………………………………. 2
3. Request for permission to make oral submissions ………………………………………………………….. 4
4. Provisions relating to our rights as people with disabilities ……………………………………………… 4
Key definitions s 1 …………………………………………………………………………………………………………………………………. 4
Scope of s 19D ………………………………………………………………………………………………………………………………………. 6
Immediate operation of s 19D(1) …………………………………………………………………………………………………………… 6
Beneficiary persons / persons with disabilities s 19D(2)(a) ……………………………………………………………………. 7
Import and export of works s 19D(3) ……………………………………………………………………………………………………. 8
The impact of Technological Protection Measures (‘TPMs’) s 27(5B) read with s 28P(2) ……………………… 9
5. Provisions relating to access to education ……………………………………………………………………. 11
1. Executive summary
1. Blind SA and SECTION27 submit and recommend, in line with the Constitutional
Court judgment in Blind SA v Minister of Trade, Industry and Competition and Others,
that:
a. The definition of ‘accessible format copy’ as in the Constitutional Court
crafted remedy be adopted as it is in line with the Marrakesh VIP Treaty;
b. No change required to the definition of ‘persons with disabilities’ as the
breadth of the definition fulfils South Africa’s Bill of Rights and
international disability rights obligations;
c. The definition of ‘permitted entities’ as in the Constitutional Court crafted
remedy be adopted in the definition of ‘authorised entities’;
d. No change required to the application of s 19D to all types of works under
copyright as the breadth of the scope fulfils South Africa’s Bill of Rights
and international disability rights obligations;
e. Section 19D(1) be made operational immediately through minor
modifications to its language recommended below so that our access is not
delayed further;
f. Minor amendments to be effected to s 19D(2)(a) and 19D(3) to ensure that
these provisions do not unintentionally prevent the making and sharing of
accessible format copies between Blind SA and the people whom we serve;
g. Section 28P(2) be deleted, in accordance with the Constitutional Court
judgment and the Marrakesh VIP Treaty, to ensure that technological
protection measures do not prevent accessible format shifting and
2
inadvertently cause further unfair discrimination against us by requiring us
to seek the copyright owner’s authorisation;
h. No change required to sections 12A-D and 19C as they fulfil several rights
in the Bill of Rights, including the rights to education, equality, freedom of
expression, culture, dignity, among others.
2. Introduction
2. Blind SA and SECTION27 welcome the opportunity to submit written comments
on the Copyright Amendment Bill [B13D-2017] before the Select Committee on
Trade and Industry, Economic Development, Small Business Development,
Tourism, Employment and Labour in the National Council of Provinces.
3. These submissions to Parliament are made jointly by SECTION27 and Blind SA.1
They relate to the provisions of the Copyright Amendment Bill (“CAB”) regarding
disability and education, and the impact that these provisions have on our
constitutional rights to equality, education, freedom of expression, and dignity that
are guaranteed to all.
4. SECTION27 is a public interest law centre that seeks to influence, develop and
use the law to protect, promote and advance the rights to basic education and
health in South Africa. The name of the organisation is drawn from s 27 of the
Constitution, which enshrines everyone’s right to health care services, food, water
and social security.
5. Blind SA is an organisation that aims to equip people with visual disabilities with
the skills they need to fully and independently participate in society, through
education, braille and developmental services. Moreover, Blind SA advocates for
equality, and standing up for the rights of people with visual disabilities across the
country.
6. We are generally strongly in favour of the sections of the CAB that relate to our
work and our participation in society, but in order to make these sections fully
workable and to bring them in line with certain constitutional requirements, as
recently clarified by the Constitutional Court, certain small but critical amendments
have to be made. Our submissions set out what these critical amendments are.
7. As noted by the Minister of Trade, Industry and Competition in 20212 and the
Constitutional Court of South Africa in 2022,3 it is imperative that Parliament
expedites the finalisation of this Bill, as continued delays exacerbate the
1 These submissions have been prepared by Dr Sanya Samtani, Senior Researcher, Mandela Institute,
University of Witwatersrand.
2 The Minister of Trade, Industry and Competition’s comments at the meeting of 9 November 2021 included
that the CAB has already received extensive public consultation. At the same meeting, the Minister noted
the passage of a ‘lengthy period of ten years’ over which the CAB has been debated and discussed, with
further public consultation as and where required. See Meeting of the National Assembly Portfolio
Committee on Trade and Industry on 9 November 2021, Parliamentary Monitoring Group
<https://static.pmg.org.za/211109pctrade_am.mp3>.
3 Blind SA v Minister of Trade, Industry and Competition [2022] ZACC 33 [102], [112] (‘Blind SA CC’).
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discrimination experienced by our disability community and other marginalised
groups seeking access to education.
8. On the basis of significant delays at the National Assembly level exacerbating
pervasive violations our rights, SECTION27 and Blind SA launched litigation at
the Pretoria High Court in 2021. None of the parties, including the Minister, the
President and Parliament, opposed the matter. The High Court held that by failing
to include a provision that enables the conversion of works from one format to
another for the purpose of facilitating access for people with visual and print
disabilities, the apartheid-era Copyright Act 1978 was discriminatory and therefore
unconstitutional to that extent.4 SECTION27 and Blind SA, mindful of the fact
that Parliament was engaged in copyright reform, proposed the reading-in of
proposed s 19D of the CAB5 as the remedy.
9. The matter went up to the Constitutional Court as part of ordinary constitutional
procedure.6 It remained unopposed by all parties. The Court confirmed the High
Court’s finding that the Copyright Act 1978 was unconstitutional to the extent that
it discriminated against people with visual and print disabilities and violated our
rights to equality, dignity, and participation in cultural life.7 Importantly, the
judgment of the Constitutional Court regarding the Copyright Act’s unfair
discrimination and violations of our rights as people with visual and print
disabilities centred on on the specific requirement of authorisation by the copyright
owner.8
10. The Court was sensitive to the fact that the CAB continues to be debated in
Parliament. Its declaration of constitutional invalidity was thus suspended for a
period of two years to give Parliament time to legislate to fix this
unconstitutionality.9
11. However, in order to provide us with immediate redress and to ensure that our
rights do not continue to be violated, the Court read in its own, court-crafted
remedy, s 13A, for that interim period.10 Section 13A thus provides a baseline (an
absolute minimum) which Parliament must meet in its formulation of provisions
that impact our disability community, in order to rectify the unconstitutionality of
the Copyright Act 1978 and fulfil its constitutional obligations set out by the
judgment. We submit that s 13A does not function as a ceiling or a prescription:
Parliament’s proposed legislative protection for our rights cannot go lower than s
13A,11 but it certainly can and, we submit, should go higher in view of South
4 Blind SA v Minister of Trade, Industry and Competition [2021] ZAGPPHC 871.
5 At the time, the CAB was the [B13B-2017] version at the National Assembly.
6 Since the High Court held that the Copyright Act 1978 was unconstitutional, this declaration of
unconstitutionality had to be confirmed by the Constitutional Court for it to be operational.
7 Blind SA CC [112], order.
8 BlindSA CC [64]-[66]; [71]-[74] citing the violations of the rights under sections 9(2), 10, 16(1)(b), 29(1) and
30 of the Constitution.
9 Blind SA CC order paras 2, 5.
10 Blind SA CC order para 6.
11 To the extent that Parliament seeks to rectify the unconstitutionality identified by the Court.
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Africa’s concurrent constitutional and international human rights obligations to
ensure that people with disabilities do not experience discrimination. In addition,
Parliament has the discretion to use its own language and is not bound by the
language of the Court, as long as it has the same effect.
12. In our submissions and recommendations, we focus on aligning ss 19D and 28P
with s 13A and the Bill of Rights. As recognised by the Court, through the CAB
process, Parliament is engaged in giving domestic effect to its existing international
obligations as well as creating the legislative framework for South Africa to ratify
the Marrakesh VIP Treaty. The Court makes it clear – and we agree – that s 13A
is only part of that broader legislative reform.
13. We also emphasise the importance of retaining ss 12A-D and 19C as is, in order
to realise the right to education for all, without discrimination.
3. Request for permission to make oral submissions
14. Blind SA and SECTION27 also request that we be permitted to make oral
submissions at the public hearing. We remain available to assist should there be
any further request for clarification on our submissions or any related matter.
4. Provisions relating to our rights as people with disabilities
Key definitions s 1
15. The CAB defines ‘accessible format copy’,12 ‘person with a disability’,13 and
‘authorized entity’14 in section 1. In Blind SA CC, the Court found the definition of
accessible format copy in the CAB to be ‘truncated’, and so opted to read in the
entirety of the definition from the Marrakesh VIP Treaty verbatim instead.15
RECOMMENDATION: We suggest that the Select Committee retain the Court’s
definition of accessible format copy for coherence with Blind SA CC and conformity
with the Marrakesh VIP Treaty .
16. The CAB defines ‘person with a disability’ broadly to include physical, intellectual,
neurological, or sensory disabilities.16 The definition centres the constitutional
guarantee of non-discrimination in describing how accessible format shifting
should work ‘to enable that person to access and use the work in the same manner
as a person without a disability’. The CAB’s definition provides for access for
people with disabilities across the spectrum and is in line with s 9 of the
Constitution as well as South Africa’s international obligations under the UN
Convention on the Rights of Persons with Disabilities.17 The Court does not
acknowledge the existence of this definition (even though it was present in CAB
12 CAB, s 1(a).
13 CAB, s 1(j).
14 CAB, s 1(c).
15 Blind SA CC [106]. Compare Marrakesh VIP Treaty, art 2(b) with s 13A(1)(a).
16 CAB, s 1(j).
17 UNCRPD, s 30(3).
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B13B-2017) and instead reads in the definition of ‘beneficiary person’ for the
purposes of accessible format shifting.
17. However, we submit that the Court’s definition of ‘beneficiary person’ is narrower
than the CAB’s definition of ‘person with a disability’. The Court limits its
definition to persons with visual and print disabilities. The key reason for this,18 is
because the case before the Court was brought by our community, people with
visual and print disabilities. This does not mean an adverse ruling regarding people
with other disabilities, or any statement that the CAB’s definition is
unconstitutional. Rather, we submit that the CAB’s definition applies the principle
of non-discrimination to people with other disabilities, as well, removing the need
for future mobilisation and potential litigation from each of those groups.19
18. This is not an outlier: a scoping study conducted by the WIPO SCCR found that
28 WIPO member states did not limit the type of disability of beneficiary persons
to visual and print disabilities. Rather they included people with disabilities across
the spectrum.20
RECOMMENDATION: We therefore submit that the definition in the CAB is in
line with the Constitution as it provides protection to disability groups analogous to
our group and ensures that people with disabilities across the spectrum can be full
participating members of society. We suggest that the Select Committee retain the
CAB’s definition. No change required.
19. With regard to the definition of ‘authorised entity’ in the CAB, we submit that the
definition is much narrower than the court-crafted definition of ‘permitted entity’
in s 13A. This runs the risk of excluding entities like ourselves from serving our
community. This is because the CAB’s definition of authorised entity specifies that
the entity must be part of government or a non-governmental organisation (NGO).
20. On the other hand, court-crafted s 13A adopts Marrakesh VIP Treaty’s inclusive
definition with government and NGOs as examples of organisations that could be
considered permitted entities. We are concerned that the CAB’s restrictive
definition, on a narrow interpretation, could limit libraries, associations and private
schools and universities amongst others from assisting beneficiary persons who
may require accessible format shifting within these organisations.
RECOMMENDATION: We suggest that the Select Committee adopt the courtcrafted
definition of ‘permitted entity’ by simply introducing the underlined words at
the start of CAB s 1(c)(b) to read as follows: (b) an entity, including a government
institution or non-profit organisation […]
18 Blind SA CC [104].
19 People with disabilities across the spectrum experience different challenges regarding accessing materials
under copyright. See, for a full explanation of the various challenges on the basis of specific types of
disabilities, Caroline B. Ncube, Blake E. Reid, and Desmond O. Oriakhogba, ‘Beyond the Marrakesh VIP
Treaty: Typology of Copyright Access-enabling Provisions for Persons with Disabilities’ (2020) 23 The
Journal of World Intellectual Property 149.
20 WIPO SCCR, Revised Scoping Study On Access To Copyright Protected Works By Persons With
Disabilities prepared by Professor Blake E. Reid and Professor Caroline B. Ncube (March 2019)
SCCR/38/3.
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Scope of s 19D
21. Section 19D does not limit the types of works from which accessible format copies
can be made. It includes all works under copyright. We submit that this is the
appropriate solution to pervasive discrimination against our community who are
excluded from accessing all types of works under copyright in the mainstream
market.
22. For instance, the court-crafted remedy s 13A(1)(c) is limited to literary works and
does not include musical works and sound recordings. The latter two categories of
works are defined in s 1 of the Copyright Act.21 Although it is arguable that sheet
music is a ‘literary work’ in that it is often published in the form of a book, the
current Act does not include it as an explicit example within the inclusive definition
of literary works. Rather, the definitions of musical works and, in particular, sound
recordings (as it refers to the fixation of signals representing sounds) are arguably
the appropriate provisions within which sheet music would fall.
23. A textual interpretation would entail that despite the BlindSA judgment, blind
musicians are still unlikely to be permitted to make Braille copies or accessible
format copies of sheet music that contains graphical musical notations without
permission from the rights holder, excluding them entirely from participating in
cultural life.
RECOMMENDATION: We suggest that the Select Committee continues to permit
accessible format shifting for all types of works under copyright. This avoids the need
for further litigation to be brought on the basis of exclusion from particular types of
cultural activities by people with disabilities. No change required.
Immediate operation of s 19D(1)
24. We submit that the Court explicitly specified the need to ensure that the provision
permitting accessible format shifting was operational immediately, without
requiring ministerial regulations.22 In crafting interim remedy s 13A, the Court held
that ‘The starting point is this: persons with print and visual disabilities should not
have to wait further to secure a remedy. […] There must be a remedy granted that
provides immediate redress.’23 Section 13A(2), read with the inclusive definition of
‘permitted entity’ guarantees the immediate effect of the reading-in. This entails
that organisations like BlindSA can immediately engage in accessible format
shifting under that provision. Parliament, however, has the final say through the
CAB.
21 Regarding ‘musical works’ in s 1 of the Copyright Act, the definition reads as follows: “musical work”
means a work consisting of music, exclusive of any words or action intended to be sung, spoken or
performed with the music. Regarding ‘sound recordings’ in s 1 of the Copyright Act, the definition reads as
follows: “sound recording” means any fixation or storage of sounds, or data or signals representing sounds,
capable of being reproduced, but does not include a sound-track associated with a cinematograph film.
22 Blind SA CC [102], [109].
23 Blind SA CC [102].
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25. We submit that the CAB’s s 19D(1), as interpreted by the Court, requires
regulations to make the provision operational.24 This is problematic and risks
delaying the realisation of our rights and placing their fulfilment in the hands of
the minister.
26. This interpretation is clear from the text of s 19D(1) read with the definition of
‘authorised entity’ in s 1(c)(b). The relevant part of s 19D(1) reads: ‘Any person as
may be prescribed and who serves persons with disabilities, including an
authorized entity, may […]’. The underlined word ‘and’ entails that both conditions
must be fulfilled: that the person in question (including an authorised entity) must
be prescribed by regulations and must serve persons with disabilities. Even if the
concerns surrounding the definition of authorised entity were addressed (making
the definition in s 1(c)(b) more inclusive), the text of s 19D(1) still limits its scope
by requiring that regulations be promulgated to enable authorised entities and
others who are prescribed to engage in accessible format shifting.
27. This, as the Court holds, would delay the rectification of rights violations set out
in the judgment and therefore continue to perpetuate unfair discrimination that we
already experience in our daily lives.25 This is unconstitutional.
RECOMMENDATION: In addition to making changes to the definition as
suggested in the previous section, we suggest the deletion of the phrase that is struck
out below, entailing that s 19D(1) read as follows: ‘Any person as may be prescribed
and who serves persons with disabilities, including an authorised entity […]’.
Beneficiary persons / persons with disabilities s 19D(2)(a)
28. The Court ensures that in its remedy, a beneficiary person or person acting on their
behalf can not only engage in accessible format shifting but also make use of
accessible format copies that they have lawful access to. This is limited to personal
use of the beneficiary person but it does not preclude the exchange of accessible
format copies through the utilisation of other exceptions and limitations. This
covers a situation where, for instance, a blind person were to photocopy and then
convert to Braille a chapter of a book from a university library for the purposes of
completing coursework for their degree; or a librarian were to make available that
Braille copy to other people with visual and print disabilities also completing their
coursework. There is thus no need to make a fresh accessible copy at every stage:
the same accessible copy can be made available as long as it is lawfully accessed:
through the market or the exercise of other exceptions and limitations (the whole
plethora under ss 12-19B of the current Act).
29. Section 19D(2)(a) on the other hand confines its operation to ‘an activity under
subsection (1)’. Thus, interpreting s 19D(2)(a), only if an accessible copy has been
freshly made by a permitted entity under s 19D(1) can a person with a disability
use the work and make copies of it, subject to those copies being lawful under
other exceptions.
24 Blind SA CC [102], [108], [109].
25 Blind SA CC [102] citing Constitution s 237.
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30. This is problematic as it excludes the possibility of a blind person already having
lawful access to a work (say, through an e-library) and converting it to an accessible
format on their own; or already having lawful access to a work that is in an
accessible format and needing to lawfully share such copies. It does not speak to
the realities of how access to accessible format copies takes place – through both
individuals and permitted entities. This has the possibility of further practically
restricting access to accessible format copies and perpetuating the discrimination
that the Court sought to address.
RECOMMENDATION: We suggest the deletion of the phrase that is struck out
below, entailing that s 19D(2)(a) reads as follows: ‘A person to whom the work is
communicated by wire or wireless means as a result of an activity under subsection
(1) may […]’.
Import and export of works s 19D(3)
31. The court-crafted remedy focuses on accessible format shifting. However, by
rendering accessible format shifting a non-infringing use, the Court has
interpretively ensured that the exchange of accessible format works does not get hit
by the secondary infringement provision in s 23(2).26 However, we submit that in
order to ensure that cross-border exchange is clearly regulated in a manner that
international libraries like Bookshare recognise,27 s 19D(3) remains important to
broadening and facilitating access for us.
32. Section 19D(3) creates a foreseeable domestic framework for the domestication of
the Marrakesh VIP Treaty.28 However, there is a similar difficulty with regard to
the language in proposed s 19D(3)(a) where the scope of exchange is constrained
to those accessible format copies created by permitted entities under s 19D(1). The
relevant section reads: ‘[…]may, without the authorization of the copyright owner
export to, or import from, another country any legal copy of an accessible format
copy of a work referred to in subsection (1)[…]’.
33. This is problematic for two reasons: first, it only allows export of those copies that
are created under proposed s 19D(1) and not copies otherwise lawfully accessed
or created. And second, it creates a contradiction where import is also confined to
copies made under s 19D(1). This is not practically possible as internationally
imported accessible format copies would be created outside of South Africa and
therefore outside of South African permitted entities. This contradiction makes it difficult
to operationalise s 19D(3).
26 See the arguments advanced by Prof. Owen Dean to this effect during the Blind SA CC hearing. See also,
Owen Dean, Handbook of South African Copyright Law’ Revision Service 15 [30 September 2015], JUTA
[8.12] – [8.14].
27 See, for a personal account of the full extent of difficulties in gaining access to Bookshare, Claudia Jansen
van Rensburg, ‘Accessing the Right to Research in South Africa: Reflections, Copyright and Visual
Impairment’, (Paper presented at ‘The Right to Research in Africa’ Conference 24-27 January 2023, Pretoria
and Cape Town). Dr van Rensburg is the Blind SA/Postdoctoral Research Fellow, Chair: Identities and
Social Cohesion in Africa, Nelson Mandela University.
28 In particular, Marrakesh VIP Treaty, art 5.
9
34. A better understanding of the reason for the cross reference to s 19D(1) is that
legislators possibly intended to refer to the definition of ‘accessible format copy’
rather than limiting access to freshly created accessible format copies from
permitted entities in South Africa. To the extent that the reference to s 19D(1)
relates to the conditions under which accessible format shifting must take place
(ie., where the person has lawful access to the work, is undertaking the conversion
on a non-profit basis etc.), this is taken care of by the provisions on secondary
infringement in the current Act.
35. Where an accessible format copy has been made abroad in violation of the
conditions under South African law, their import will be considered secondary
infringement under s 23(2). There is thus no real risk of importing copies that are
not in compliance with South African law – and in any event, this reference to s
19D(1) is misplaced.
RECOMMENDATION: We suggest that the following change in s 19D(3) be made
where ‘subsection (1)’ is replaced with ‘s 1(a) of the Act’ that defines accessible format
copy: ‘[…]may, without the authorization of the copyright owner export to, or import
from, another country any legal copy of an accessible format copy of a work referred
to in subsection (1) s 1(a) of the Act[…].
The impact of Technological Protection Measures (‘TPMs’) s 27(5B) read
with s 28P(2)
36. Fixing our experience of unfair discrimination and several rights violations, as per
the Court’s judgment, requires that we and people who assist us be given ‘the
greatest latitude to produce literary works in accessible format copies and to
develop technologies to do so that are ever better at rendering the original work in
the best possible way, tailored to the varied incidents of the impairments such
persons suffer’.29
37. Accessible format shifting requires the conversion of works into formats other
than the format in which it was published. For instance, running a software to read
e-books aloud or printing an e-book in Braille. Often, the computer on which the
e-book is accessed, say a library computer, does not have a Braille printer attached
to it. What would then be required is for the e-book to be emailed / transferred on
a flash drive to a computer that is connected to a Braille printer for us to access
the e-book. However, technological protection measures (TPMs) that ‘lock’ ebooks
to a single device, for instance, prevent us from doing this entirely.
38. The CAB’s s 27(5B) criminalises any ‘unlocking’ (circumventing) of these digital
locks irrespective of the purpose for which it is unlocked. However, it contains a
set of exceptions under s 28P. In our submissions we focus on the requirements
for engaging the exceptions under s 28P.
39. Section 28P(1)(a) expressly permits the circumvention of such locks if it is done
for the purposes of giving effect to a legislated exception or limitation to copyright.
This means that in the scenario described above, if accessible format shifting (that
29 Blind SA CC [89].
10
fulfils the conditions in s 19D) requires circumvention, then it is permitted.
However, reading further, s 28P(2)(a) subjects the operation of s 28P(1) to the
requirement of authorisation by the copyright owner.
40. In other words, if accessible format shifting requires circumvention, then we are
back to the unconstitutional position that we litigated against at the Constitutional
Court: the onerousness and sheer impossibility of seeking out the copyright owner
to request their authorisation to facilitate our constitutional rights. In argument
before the Court we explained, and the Court affirmed, how the requirement for
us to find the copyright owner and seek permission to convert works into
accessible formats constitutes unfair discrimination as well as violates our rights to
equality, dignity, culture, freedom of expression and education. We demonstrated
how copyright owners do not have an obligation to be contactable, and neither do
they have an obligation to respond to us once we contact them. The Court
understood that this was in effect an absolute barrier to us converting work into
formats we could actually read. Moreover, studies around the world have
confirmed that TPMs often interfere with assistive technologies that are used to
ensure accessibility for us.30
41. We submit that the requirement under s 28P(2)(a) has the same effect, and that is
clearly unconstitutional.
42. Section 28P(2)(b) tries to introduce a safeguard to prevent this unconstitutionality
– that should the copyright owner not respond, or fail to respond in ‘reasonable
time’, we can go ahead with our unlocking. However, we submit that this is
inadequate as it treats us, persons with disabilities, like second-class citizens.
People without disabilities can easily walk into a library and read a book without
needing to track down and contact the copyright owner. People without disabilities
can buy an e-book and read it on their Kindle (e-book reader) without needing to
seek permission from the author to use the ebook on a different device. We submit
that it is discriminatory to subject our access to further delays and create additional
bureaucratic hurdles that people without disabilities do not have to contend with.
43. Moreover, s 28P(2) is not in line with the Marrakesh VIP Treaty.31 The Marrakesh
VIP Treaty stipulates that those States parties that elect to provide for anticircumvention
of TPMs in their laws ‘shall […] ensure […]’ that their laws do not
prevent us, people with disabilities, from making use of the Marrakesh VIP Treaty’s
exceptions and limitations. In other words, ‘a state must ensure that this
prohibition prevents neither the creation of nor access to digital works, nor their
legitimate sharing and use by authorized entities and beneficiary persons’.32 By
30 See, for instance K Ellis and M Kent, Disability and new media (Routledge, 2011); G Kerscher and J
Fruchterman, ‘The soundproof book: Exploration of rights conflict and access to commercial eBooks for
people with disabilities’ 7(6) First Monday (2002) available at https://doi.org/10.5210/fm.v7i6.959; GA
Giannoumis, M Land, W Beyene, and P Blanck, ‘Web accessibility and technology protection measures:
Harmonizing the rights of persons with cognitive disabilities and copyright protections on the web’ 11(1)
Cyberpsychology: Journal of Psychosocial Research on Cyberspace (2017), article 5, available at:
10.5817/CP2017-1-5.
31 Marrakesh VIP Treaty, art 7.
32 LR Helfer and others, The World Blind Union Guide to the Marrakesh Treaty (Oxford University Press 2017)
150.
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introducing onerous requirements, s 28P(2) is likely to cause a chilling effect on us
accessing, creating, sharing and using digital works.33
44. With regard to concerns about infringement, copyright owners are already
protected through the balance struck in every exception. For our constituency, on
particular, s 19D sets out several safeguards preventing accessible format shifting
from being abused to the detriment of the copyright owner – for instance, that we
can only engage in it for the sole use of people with disabilities and that it must be
a non-profit use, amongst others.
RECOMMENDATION: We suggest the deletion of s 28P(2) to prevent the
perpetuation of the unfair discrimination that we have suffered for decades. We submit
that it is enough to retain s 28P(1) that exempts the utilisation of circumvention for
the purposes of exceptions and limitations that are in the Act. With this
recommendation, read with the in-built conditions in s 19D, our rights will continue
to be realised without negatively affecting copyright owners.
5. Provisions relating to access to education
45. We submit that ss 12A-D and 19C are crucial to realise the right to education and
freedom of expression for all members of society. Our previous submission dated
January 2022 set out the importance of educational exceptions to copyright as
being required by the Constitution to ensure that copyright does not act as a barrier
to accessing educational materials.34
46. In addition, s 19C is key to ensuring that our cultural heritage is adequately
protected by providing for the digitalisation of the collections of libraries, archives,
museums and galleries.
47. The Constitutional Court, in Blind SA CC, recognised the importance of access to
educational materials for learners with disabilities as well as the fact that several
learners with disabilities also live in poverty and are therefore doubly excluded
from the market.35
RECOMMENDATION: All the provisions we have listed in this section have
undergone significant public participation processes and we suggest they remain as
they are in the CAB. No change required.
For any further enquiries, please contact:
SECTION27 BlindSA
Dr Faranaaz Veriava Jace Nair
Head of Programmes CEO of BlindSA
veriava@section27.org.za ceo@blindsa.org.za
33 As the World Blind Union Guide highlights at p 156, ‘The essential purpose of Article 7 is to ensure that
TPMs do not impede enjoyment of the rights guaranteed by the Marrakesh VIP Treaty. Avoiding this result
is especially important for beneficiaries in developing and least-developed countries, who are likely to be
unduly burdened by TPMs.’
34 Blind SA and SECTION27, Copyright Amendment Bill Submissions January 2022 available at:
<https://section27.org.za/2022/02/copyright-amendment-bill-submissions-jan-2022/>.
35 Blind SA CC [64], [73].