Constitutional Court may finally ensure the needs of visually impaired people are accommodated in copyright law

In the Constitutional Court case of MEC for Education: KwaZulu-Natal v Pillay (Pillay), the late Chief Justice Pius Langa stated - 

“Disabled people are often unable to access or participate in public or private life because the means to do so are designed for able-bodied people. The result is that disabled people can, without any positive action, easily be pushed to the margins of society.”

That persons with disabilities are often excluded from participating in public or private life is not inevitable – it is a consequence of a society that has failed to ensure persons with disabilities are accommodated. The Constitution committed South Africa to redesign society to espouse a culture of respect for human rights and to act to better the “...quality of life of all citizens and free the potential of each person”. Section 9 of the Constitution specifically imposes a duty on both the government and private entities to ensure there is no direct or indirect unfair discrimination against persons with disabilities. 

The government was given an obligation to pass legislation to ensure such discrimination would not persist. However, there are still innumerable ways that persons with disabilities are discriminated against. An example of this is the failure of the state to amend the Copyright Act of 1978, which creates obstacles to converting published works into formats that persons who are blind or visually-impaired can read. 

On 12 May 2022, the Constitutional Court will hear a matter which may potentially rectify this injustice, in the case of Blind SA v Minister of Trade, Industry, and Competition and Others.

To hold a copyright over a work gives one a number of exclusive entitlements over that work. For example, the owner of the copyright over a particular book is the only person that has the right to publish, reproduce, adapt or distribute that book, unless the owner gives permission for another person to do so. However, the rights of the owner under copyright are not absolute. The Copyright Act recognises “exceptions” to allow the use of published works for certain purposes without the permission of copyright holders. Such exceptions include allowing for the reproduction of works for the purpose of criticisms or reviews, newspaper articles, or private study.

Despite these exceptions, there is no exception for persons who are blind or visually-impaired to make, reproduce, or distribute published works without the permission of the copyright holder. Such an exception would provide access to countless published works not currently available to them. This is because the status quo means that people who are blind or visually-impaired, or the entities serving them, must request permission from the copyright holder every time they seek to convert a book to an accessible format (such as Braille), copy that converted book, or distribute it. Copyright holders have no obligation to grant permission or respond to such requests. Even if the copyright holders do grant permission, this can take an inordinate amount of time and makes the process far more expensive than necessary. If persons who are blind or visually-impaired do not follow this process, they are at risk of criminal sanction. 

This has been a large contributing factor in creating a “book famine” in South Africa, in terms of which it has been estimated that less than 0.5% of published works are available in accessible formats for persons who are blind or visually-impaired. This is a clear violation of the rights of persons who are blind or visually-impaired to equality, dignity, and education, amongst other rights. Internationally and domestically, the necessity of a limitation or exception in copyright laws for persons who are blind or visually-impaired to vindicate their rights and access accessibly formatted books is not contested. Indeed, such an exception was included, without contention, in section 19D of the 2017 Copyright Amendment Bill. However, because of continuing delays to the passing of the Copyright Amendment Bill, which are unrelated to providing an exception for persons with blindness or visual impairments, it has become apparent that such an exception will not be provided for by Parliament any time soon. 

Not all hope is lost. On 12 May 2022 the Constitutional Court will hear a case requesting the confirmation of an order of the High Court given in favour of Blind SA, represented by Section27, that declared the Copyright Act unconstitutional to the extent that it discriminates against persons who are blind or visually-impaired and “read in” an exception. If the Constitutional Court confirms this order, such an exception, the wording of which is taken directly from section 19D of the Copyright Amendment Bill, would be immediately inserted into the Copyright Act, without the need to wait for Parliament. 

The former Constitutional Court Justice Zak Yacoob, who is himself blind, stated in his supporting affidavit for Blind SA: 

“...every day that the present Copyright Act prevails in the form in which it is, literally thousands of blind and visually impaired people are deprived of reading material, and the prejudice to them is in fact irreparable, incalculable, and very difficult to put into words. I would suggest that even without it being put into words, the prejudice is obvious.”

In Pillay, the Constitutional Court recognised that to ensure the realisation of the rights of persons in a society valuing diversity, positive steps must be taken, which may require providing for exceptions to general rules. Providing for an exception to the general rules of copyright for persons who are blind or visually-impaired would be exactly in line with what the Constitutional Court envisaged. As the legislature is expected to take a long time to pass any amendment to the Copyright Act, the duty to vindicate the rights of persons who are blind or visually-impaired by inserting an exception into the Copyright Act now falls on the Constitutional Court. It is imperative that this occurs, without delay, lest the current book famine continues indefinitely for persons who are blind or visually-impaired in South Africa.