Copyright Act victory in ConCourt for blind and visually impaired

Attorney Demichelle Petherbridge and advocate Faranaaz Veriava for Blind South Africa discuss the next step after the Constitutional Court judgment on 21 September. (Photo: Meseret Argaw)

By Zukiswa Pikoli

21 Sep 2022

The judgment by acting Judge David Unterhalter reads: ‘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.

The Constitutional Court on Wednesday handed down a landmark judgment declaring the 1978 Copyright Act unconstitutional because sections of the act deny blind and visually impaired people access to reading materials.

Last September, Blind SA, represented by SECTION27, took the matter to the Pretoria High Court and in December the high court found the act unconstitutional. The organisation then took the matter to the Constitutional Court for confirmation in May this year, arguing that urgent changes to the act were required.

The judgment by acting judge in the Constitutional Court David Unterhalter reads: “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 for accessible-format books, the judgment stated: “Persons with print and visual disabilities should not have to wait further to secure a remedy.”

Blind South Africa CEO Jace Nair (left) and Blind South Africa president Ntshavheni Simon Netshituni celebrate the Constitutional Court judgment. (Photo: Meseret Argaw)

“We are ecstatic that we have a judgment that provides for the exceptions that we have been advocating for so long,” said Blind SA CEO Jace Nair after Justice Jody Kollapen read out the unanimous judgment.

“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 judgment also made key findings about how the act disproportionately affected poor people with disabilities, saying: “The obligation to secure the authorisation of the owners of the copyright in literary works to make published literary works available in accessible format copies (the requirement of authorisation) has led to a scarcity of such works.

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“More often, and particularly for poor persons in this class, the scarcity is absolute, and few works are available at all.”

In a joint statement, Blind SA and SECTION27 said: “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.”

“The judgment provides both a moving affirmation of the rights of people living with disabilities and orders relief that will start improving the lives of blind and visually impaired people right away,” Spotlight editor Marcus Low, who is visually impaired and deposed a supporting affidavit in the case, told Maverick Citizen.

Attorney Demichelle Petherbridge (left) and advocate Faranaaz Veriava for Blind South Africa discuss the next step after the Constitutional Court judgment on 21 September. (Photo: Meseret Argaw)

“It sends an unequivocal message that the rights of people living with disabilities must matter in our society and that our laws must reflect this. It is a truly historic judgment.”

Low said the judgment “will make it easier for people who are blind or visually impaired to get the books they need, be it for their education or whatever other reason. The judgment means that people who are blind, or librarians or other persons assisting them no longer need to ask publishers for permission to produce accessible-format copies of books; they can simply go ahead and make accessible-format copies without having to wait for permission that they may or may not be granted — often after many months.”

The judgment also ordered the minister of trade, industry and competition to pay the applicants’ costs, including that of their two legal counsel. DM/MC

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