Opening salvo in Blind SA case — ‘Copyright Act a hurdle to freeing the potential of each person’

Justice Madlanga, and Justices of the Constitutional Court:

One passes through the most beautiful nine-metre-high timber doors to enter the foyer to this Court. Carved into the wood are sign-language symbols and words depicting all the rights enshrined in the Constitution. On either side of the door handle is a plaque, which notes — in all 11 official languages — when the court building was officially opened, and by whom. The door handle itself, in solid brass, is inscribed with Braille. 

It appears to be the only Braille in the building.

One can reach the entrance to the foyer by walking up the Great African Steps, passing the court building on one’s left, and Number Four (where black prisoners were housed) on one’s right. Snaking up between the steps is a paved ramp, with the promise of access for those with physical disabilities being rudely interrupted, from time to time, by the occasional step.

https://www.dailymaverick.co.za/article/2022-05-12-concourt-to-rule-on-copyright-case-affecting-blind-south-africans/

Across from the entrance to the foyer, on the ground in front one of the stairwells of the old awaiting trial block, is the text of the preamble to the Constitution. Amongst other things, it states that the Constitution was adopted as the “supreme law of the Republic so as to… [i]mprove the quality of life of all citizens and free the potential of each person”.

That promise continues to be broken, day after day after day, by the failure of the Copyright Act to ensure that persons with visual and print disabilities are able to access works under copyright. 

They require access to what are termed accessible format copies, such as Braille, audio versions, copies of published works in large print, and digital formats that enable the use of screen readers.

But the vast majority of books are published in print, with the World Intellectual Property Organization estimating that only one to seven percent of books are published in a format that the 285 million persons with visual and print disabilities worldwide can read. 

And yet, the Copyright Act effectively prevents accessible format copies of published works from being made locally, or imported from where they are lawfully made. It does this by making copyright infringement not only actionable, at the instance of the copyright holder, but also a criminal offence.   

Almost nine years after the international community agreed on the legal mechanisms to facilitate access for persons with visual and print disabilities, the state has yet to amend the Act in the manner contemplated by that agreement.

To be fair, the state has made clear its intention to legislate in this way, with Parliament already having passed the Copyright Amendment Bill three years ago. Amongst other things, that bill provided for the making and sharing of accessible format copies of works under copyright, and for their import and export. 

Through the introduction to the Act of a new section 19D, it sought to give domestic effect to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.

But on 16 June 2020, more than a year after it had completed its passage through Parliament, the bill was referred back to the National Assembly in terms of section 79(1) of the Constitution. Since then, the decision to pass the bill has been rescinded, and it has been retagged as a section 76 bill. 

https://www.dailymaverick.co.za/article/2022-05-16-jacob-zuma-yesterdays-man-of-power-politics/

Now, almost two years since the President’s referral — five years since the bill was first tabled in Parliament, and almost seven years since a draft bill was published for public comment — the bill has yet to make its way out of committee. 

Nobody knows when it will be ready for reconsideration by the National Assembly, before it is sent to the National Council of Provinces (NCOP) to begin its processes afresh in accordance with section 76. And that process could take considerable time.

The result is that section 19D is effectively held hostage pending the outcome of an ongoing legislative process focused on other issues. 

For Blind SA, which seeks to put an end to the book famine, that is just unacceptable. That is why it turned to the high court: to ensure that people with visual and print disabilities are able to access works under copyright, without having to await the enactment (and subsequent coming into force) of the full set of amendments to the Act, in whatever form they may ultimately take.

In certain respects, this case is somewhat unique:

First, everyone in this matter, whether a party or amicus curiae, accepts that the legislative framework as a whole unfairly discriminates against persons with visual and print disabilities, and unreasonably and unjustifiably limits a wide range of other constitutional rights. 

Everyone also accepts that the legislative framework should be amended to give full domestic effect to the Marrakesh Treaty.

Second, none of the respondents takes issue with any aspect of Blind SA’s proposed reading-in, with immediate effect, of section 19D of the bill. This includes the Speaker of the National Assembly and the chairperson of the NCOP, who preside over the legislative process, and the President himself, who referred the bill back to Parliament.

The failure of the Copyright Act to ensure that persons with visual and print disabilities are able to access works under copyright. They require access to what are termed accessible format copies, such as Braille, audio versions, copies of published works in large print, and digital formats that enable the use of screen readers. (Photo: Gallo Images / Foto24 / Bongiwe Gumede)