Constitutional Court to hear key case on rights of the visually impaired to access copyrighted works

 

• “Equality is the soul of liberty; there is, in fact, no liberty without it” — Frances Wright.

Last week we celebrated World Press Freedom Day, which focuses on the right to freedom of expression. This week the Constitutional Court will hear a case about a key component of freedom of expression — access to information.

Blind SA is seeking to ensure that South Africa’s outdated Copyright Act is amended to enable people with visual disabilities to access books without having to first approach the copyright holder to ensure it can be changed into an accessible format, like braille. These two pieces by Section27 set out the key challenges and what is at stake.

Media Monitoring Africa (MMA) represented by Power Singh Inc, will be appearing as an amicus curiae (friend of the court) in this case. For MMA, in addition to the case being about the right to equality, it is also about the right to access information.

The case serves to highlight the interdependence of rights — and how, if we undermine some we undermine others, and inversely, if we protect and deepen some rights, we help protect others. As we say in our Heads of Argument:

“The right to freedom of expression, provided for in section 16 of the Constitution, is integral to the advancement of dignity and autonomy. It serves to enable an array of other human rights and constitutional values. The ‘freedom to receive or impart information or ideas’ is an essential element of the right to freedom of expression, enabling the formulation and development of opinions and ideas, and the transfer of knowledge. It is a right for all people to enjoy, equally.”

Currently, in terms of our Copyright Act, changing or adapting a copyrighted work may amount to a copyright infringement, which may constitute an offence. Seems okay in some respects as the general focus of copyright is to respect the integrity of intellectual property — except, of course, if you are visually or print impaired, in which case, and in many instances, works must be adapted or changed for them to be accessible.

Therein lies the challenge. To be clear, none of the parties in this case is suggesting that copyright works should not be protected. What we and all parties agree on is that there needs to be an exception to ensure that those with print or visual impairments can access copyright works with fewer hurdles and not risk breaching the law simply to exercise their right to access information.

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It’s not that hard really — enabling equitable access to information must be balanced against the rights of copyright holders. MMA believes that the incursion on the rights of the copyright holder is minimal and far outweighed by the interests and rights of people with disabilities.

As it stands, copyright holders with little discernible benefit have their rights protected at the expense of those with visual or print impairments.

It is deeply regrettable that this position has persisted for nearly half a century. It may have made sense under apartheid where only some members of society had rights, but not in a democratic society where there is a clear obligation to ensure that everyone can access information.

It’s bitter consolation that being so far behind in this area means that there is a plethora of other countries that have already addressed this issue, so we have loads of excellent international and foreign precedent, not only about balancing, but providing an exception in copyright legislation for people with disabilities.

Research by the World Intellectual Property Organisation (Wipo) reveals that:

• “28 countries have copyright legislation that provides exceptions for all disabilities, not specifying the disability;


• “24 countries have copyright legislation which includes exceptions for persons with visual disabilities only limited to print/text works; and


• “72 countries have copyright legislation that provides an exception for persons with visual disabilities beyond print/text works and/or works not specified.” (MMA Heads of Argument).

Moreover, as the world moves increasingly online — and as new technologies emerge — the manner in which we receive and impart ideas and information is evolving, and the need to ensure equitable access becomes even more pressing.

In line with international standards and the prevailing position that the same rights that apply offline apply online, MMA argues that any exemptions for people with visual impairments should be inclusive of works in the digital environment.

We have an opportunity to ensure equitable access in a manner that is responsive to our expanding digital realities.

So there is precedent — loads of it — and there is agreement that we need a built-in exception. But there is something else too. Section 237 of our Constitution requires constitutional obligations to be performed diligently and without delay. We argue that the state is obliged to prepare, initiate, introduce and bring into operation legislation that enables people with visual and print disabilities to realise their rights. This obligation must be fulfilled expeditiously.

That people with visual and print disabilities are still unable to access copyright works on an equitable basis is indicative of the state failing to fulfil its obligation.

This week, our Constitutional Court will hear a case about our Copyright Act, but at the heart of it, this case is not about copyright — it is about equitable access, equality, dignity and the state’s duty to fulfil its constitutional obligations. It presents an important opportunity for the rights of people with disabilities to be meaningfully realised without delay.

This case marks a significant moment in a long-awaited battle for equitable access to information. This week, take some pride in the reality that a momentous battle for equality may be won. DM

William Bird is the director of Media Monitoring Africa (MMA) and Tina Power is a senior associate at Power Singh Inc.

 

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