Challenge to the constitutionality of ‘outdated’ Copyright Act heads to court

Blind SA, represented by the public interest organisation SECTION27, has launched a case in the high court of South Africa (Gauteng Division) against what it believes is the state’s failure to legislatively redress the outdated Copyright Act of 1978. The Act makes no provision for people with disabilities and their need to access works in accessible formats such as Braille.

Respondents to the latest court challenge by Blind SA are the Minister of Trade, Industry and Competition, Ebrahim Patel; the Minister of International Relations and Cooperation, Dr Naledi Pandor; the speaker of the National Assembly Thandi Modise; the Chairperson of the National Council of Provinces, Amos Masondo and President Cyril Ramaphosa.  Deponents to Blind SA’s latest court challenge include retired Constitutional Court Justice Zak Yacoob and Spotlight editor Marcus Low, who have provided supporting affidavits as blind persons who have experienced first-hand the barriers to access which the current copyright restrictions in South Africa cause.

At the heart of the court challenge is the constitutionality of the Copyright Act since it limits people with visual and print disabilities to have access to works in accessible formats such as Braille, audio versions or copies of published works in large print. That’s because the vast majority of books are published in print and not in formats that are accessible to persons with visual and print disabilities — and far from making things better, South Africa's current law is often a barrier to the making of such accessible format books.

As such, the court challenge declares the Copyright Act of 1978 inconsistent with the constitution since it “unreasonably and unjustifiably limits the rights of persons with visual and print disabilities to equality, dignity, freedom of expression and basic and further education and to participate in the cultural life of their choice.”

Contained in the court papers is the call for a period of 12 months to afford Parliament the opportunity to remedy the unconstitutionality of the Act.

Under the current Copyright Act, copyright holders have near-exclusive control over the reproduction, publication, performance, broadcast, transmission and adaption of their works. Any use of such works is by default subject to the consent of the copyright holder. What this means, is that under the Copyright Act, the only available option for persons with visual and print disabilities is to contact the author or copyright owner to secure authorisation to transform the works they need into accessible formats. This route is time-consuming and cumbersome and a potential barrier to access since it remains the copyright holder’s prerogative to provide or deny authorisation or ignore the request — leaving the prospective user without recourse. If a copyright-protected work is transformed into Braille or any other accessible format without the consent of the copyright holder, this would result in copyright infringement under the Copyright Act. Blind SA points out that the issue is not one of accessing works for free, but it is about ensuring works are locally available in various accessible formats.

Blind SA CEO Jace Nair explains: “We need to end the book famine for the blind and visually impaired and we need to end it now. Blind people are still being marginalised and the Covid -19 pandemic has highlighted that as a stark reality because even information about Covid-19 was not available to blind people in accessible formats and we mainly depended on the radio.”

Approximately less than 0.5% of publications are available in accessible formats in South Africa, according to Blind SA and SECTION27.

In a media statement released on 7 April 2021, SECTION27 added: “The apartheid-era Copyright Act of 1978 infringes on the rights of persons with visual disabilities, in particular the rights to equality, dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice. Furthermore, this Act does not align with numerous international commitments like the UN Convention on the Rights of Persons with Disability ratified by South Africa in 2007 or the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (2013, not yet ratified).

“We have filed papers arguing that the Minister of Trade, Industry and Competition Ebrahim Patel, Minister of International Relations and Cooperation Dr Naledi Pandor, the Speaker of The National Assembly (Thandi Modise), the Chairperson of The National Council of Provinces (Amos Masondo) and President Cyril Ramaphosa must fulfil their constitutional and international obligations to persons with visual disabilities.”

The Copyright Amendment Bill amends the Copyright Act of 1978.

The Copyright Amendment Bill (CAB) and the linked Performers Protection Amendment Bill (PPAB) had both been passed by the National Assembly and were sent to the President in March 2019 to be signed into law.

However, the process was stalled when in a letter dated the 16th of June 2020, Ramaphosa referred the CAB and PPAB back to Parliament for further consideration suggesting that the Bills may not “pass constitutional muster and may therefore be vulnerable to constitutional challenge.”

Since then, the Bills have been deliberated by MPs but have now been indefinitely delayed and it’s unclear when a decision on the Bills will be made.

Contained in the Copyright Amendment Bill is section 19D which ensures that people with visual and print disabilities are immediately able to access protected works. It is this proposed new section of the Bill that Blind SA’s court challenge invokes government to legislatively implement.  This provision further paves the way for the Marrakesh Treaty to accede to South Africa. Given the delay and ongoing uncertainty around a decision about the Copyright Amendment Bill, Nair is of the view that section 19D is neither controversial nor subject of any particular reservation raised by the President.

The United Nations-administered Marrakesh treaty was adopted in 2013. The Treaty makes it possible for the production and international transfer of specially adapted books for the visually impaired.

Nair explains in his affidavit; “South Africa’s approach to the ratification of the Marrakesh VIP Treaty has remained consistent: unless and until the Copyright Act has been amended to give legislative effect to the Marrakesh VIP Treaty, it will not be ratified.”

Blind SA’s media statement released today reads in part: “We believe that the court must declare the current Copyright Act unconstitutional. We are calling for a temporary ‘reading in’ (or inclusion) of proposed section 19D into the current Copyright Act with immediate effect so that persons who are blind or visually impaired can start to benefit from the change as soon as possible while Parliament is still addressing the issue. If the discriminatory aspects with the Copyright Act which we have highlighted in our papers are not resolved by Parliament within a year, we request that the court makes the inclusion of 19D into the current Act permanent. We also demand that government ratify the Marrakesh Treaty. These measures would increase access to reading materials and respect the constitutional rights of persons with visual disabilities.”

Blind SA has long championed copyright legislative reform in the form of the Copyright Amendment Bill and Nair maintains that Blind SA has not abandoned its support of the CAB, recognising that the Bill is broader than the Marrakesh Treaty, as it provides exceptions not only for visually disabled persons but also for persons with other disabilities. DM/MC

Linda Daniels is a freelance journalist and a Bertha Fellow.