Copyright Bill: There’s an easy fix that will accommodate visually impaired people

16 Jun 2020

The insistence by Blind SA and others on the signing of the deficient Copyright Bill into law is puzzling: There are other, far more immediate legal mechanisms that can be implemented to give effect to the Marrakesh Treaty and improve access for the visually impaired.

The Marrakesh Treaty is an important international agreement that waives certain copyright protections in order to make the production and transfer of specially adapted materials for blind or visually impaired people easier. That South Africa is not a signatory to the treaty is an affront to the progressive vision of our Constitution.

Visually impaired people in South Africa continue to struggle to access appropriate reading materials. This challenge is especially unjust because it impedes the right of blind and visually impaired people in South Africa to education. Without specially adapted materials, efforts to increase literacy among the blind and visually impaired are impossible, and the drive for greater inclusivity is stifled.

Blind SA has been at the forefront of the fight to change this. Lately, it has taken aim at the Copyright Amendment Bill, which it says needs to be signed into law to give effect to the Marrakesh Treaty. The bill’s attempt to capture the treaty is set out in a provision that provides for “General exceptions regarding protection of copyright work for persons with disability”.

If regulations are not enough, the Department of Trade and Industry could introduce a simple amendment to the existing Copyright Act that adds an exception to copyright protections in order to expand access to material for blind and visually impaired people

The problem with this argument, however, is that the provisions of the Copyright Amendment Bill do not meet the objectives of the treaty. The bill falls short of the treaty’s expansive strategy for facilitating greater access for blind and visually impaired people. And this shortcoming is dwarfed by the host of other problems the bill introduces that will negatively impact our creative sector.

What makes the insistence on the signing of the deficient bill all the more puzzling is that there are other, more immediate legal mechanisms that can be implemented to give effect to the treaty and improve access for the visually impaired. For example, the minister of trade and industry can enact regulations under the current Copyright Act that would bring South African law in line with the provisions of the treaty. For a skilled drafter, this would not be difficult, and we do not know of anyone in the creative sector that would oppose targeted regulations with the sole focus of acceding to the treaty.

If this is possible, it is undoubtedly the quickest and most sensible way to attain the practical advantages flowing from accession to the treaty. The key advantage would be full participation consistent with the harmonised structure of the treaty and full access to the Accessible Book Consortium (ABC) – over 620,000 copies of accessible format copies of books (ABC is supported by the World Blind Union, the International Publishers Association and WIPO, among others).

If regulations are not enough, the Department of Trade and Industry could introduce a simple amendment to the existing Copyright Act that adds an exception to copyright protections in order to expand access to material for blind and visually impaired people. Given that there is near-universal support for making these materials more accessible, that amendment could be passed and assented to by the president with little fuss while the other issues in the current bill are debated.

Because the fact is that the Copyright Amendment Bill is a highly contentious piece of legislation, which is why the president has not signed it into law in the 15 months since it was passed in Parliament. The president knows that signing the bill into law as it stands would decimate the rights of content creators, and cripple the creative and cultural industry. Not only that, it will be harmful to our global trade as well as much-needed jobs at home.

The US Office of the Trade Representative is currently reviewing South Africa’s eligibility for duty-free access to US markets under their Generalised System of Preferences (GSP). Losing its GSP eligibility could cost South Africa up to R34-billion in export revenue. Similarly, the EU ambassador to South Africa has written to the president to say that European investors will have to reconsider their investments in South Africa if the bill is passed.

But the bill’s consequences are not only external. Domestically, a PwC socio-economic impact assessment found that the bill could cause the loss of 1,250 jobs in the publishing industry alone. These job losses would be occurring in an already gutted economy. By national Treasury’s latest projections, up to 1.79 million jobs are already expected to be lost due to the Covid-19 pandemic and the national lockdown.

The delay by the president in executing his duty concerning the bill is a shared concern. Parties on both sides of the copyright debate have been frustrated by the lack of either action or feedback from the Presidency. But it is a misdiagnosis of the problem to suggest that the solution is to sign into law a fundamentally flawed bill.

Additionally, should the president sign it into law, it will be challenged in court on the grounds of its unconstitutionality. The bill creates an intellectual property framework that allows for the exploitation of artists’ creations without compensation, which constitutes an arbitrary deprivation of property. The result of this exploitative framework would be the decline of the creative and cultural sectors, bringing an end to the long-cherished goal of increasing indigenous knowledge production in South Africa. Moreover, the failure to conclude a proper process of public consultation presents a procedural flaw that also renders the bill unconstitutional.

A court challenge could take years to play itself out in the courts, leaving the rights of the intended beneficiaries of this Constitutional Court application in limbo. We would hasten to say that for the creative sector to cope or recover from the passing of the defective copyright bills would take even longer, if it were achievable at all.

The president does need to exercise his constitutionally protected discretion, but not by signing the defective bills into law. Returning the bills to Parliament is a better solution, practically and constitutionally. It would allow for a proper process for enacting the Marrakesh Treaty to take place. This should involve blind and visually impaired persons as well as legal experts who can provide sound legal analysis on the requirements of the treaty and contribute to the crafting of targeted solutions that actually benefit the intended beneficiaries.

The delay by the president in executing his duty concerning the bill is a shared concern. Parties on both sides of the copyright debate have been frustrated by the lack of either action or feedback from the Presidency. But it is a misdiagnosis of the problem to suggest that the solution is to sign into law a fundamentally flawed bill.

Sending the bill back to Parliament will allow us to break down the convoluted problem that has become the Copyright Amendment Bill. Parliament can start by uncoupling this bill from the Performers Protection Amendment Bill. They can also separate and fast-track the provisions affecting the disabled community. Then we can appropriately provide for all these distinct and legitimate interests.

The way to fix the Copyright Amendment Bill is through a consultative process in Parliament. That way, all stakeholders can reach a consensus on how we can modernise South Africa’s intellectual property framework without destroying both the creative and cultural industry, but instead giving it a much-needed boost.

By referring the Copyright Amendment Bill back to Parliament, the president will give the legislature the space it needs to deconstruct these problems and deal with their separate components. Then we can implement solutions that do not pit South African sectors and civil society groups against one another. DM

Mpuka Radinku is executive director of the Publishers Association of South Africa.

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