21 September 2021, Johannesburg – BlindSA and SECTION27 today welcome an order of the High Court of South Africa (Gauteng, Pretoria Division) declaring that the Copyright Act of 1978 is invalid for violating the rights of people who are blind or visually impaired. The case BlindSA v Minister of Trade, Industry and Competition (and others) was heard on the unopposed roll before Judge Mbongwe, who made our draft order an order of the court.
This is a massive victory for people who are blind or visually impaired, as well as learners with disabilities, who will now be able to access works under copyright in accessible formats more easily! This challenge to apartheid era Copyright law will vindicate the rights of people who are blind or visually impaired to equality, dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice.
The following order has been granted:
– A declaratory order: declaring the current Copyright Act invalid and unconstitutional because it limits/prevents people with visual disabilities from accessing works under copyright in formats that they can read, and does not include provisions designed to enable access to works under copyright as envisaged by the Marrakesh Treaty;
– A ‘reading in’ – or inclusion – of the proposed section 19D of the Copyright Amendment Bill (CAB) to the current Copyright Act to allow an exception to copyright for people with disabilities so that they can convert published works into accessible formats.
The Current Copyright Act has resulted in a Book Famine for people with visual disabilities, but this will be rectified by the proposed section 19D from the Copyright Amendment Bill, which would allow exceptions to copyright for people with disabilities. The exceptions found in 9D will allow persons with disabilities to convert published works into accessible formats without the consent of the copyright holder, which can take long periods of time and under the current copyright regime, can be denied. Despite the fact that 19D is not contested and widely accepted as a necessary section to enable human rights for people with disabilities, it is being delayed through a lengthy legislative process in parliament, all the while with people with visual disabilities being barred from accessing reading materials in accessible formats. We have therefore asked for the court to ‘read in’ section 19D with immediate effect so that people who are blind or visually impaired can access works under copyright in accessible formats immediately. We have further asked that the reading in should be made permanent after 12 months if parliament has not yet remedied the situation through the finalisation of the legislative process for the Copyright Amendment Bill.
Judge Mbongwe said the following when granting the order:
“I am persuaded that the Copyright Act does indeed infringe and adversely impact on a variety of rights of persons particularly those with disability, specifically the visually impaired persons. I therefore find it just and proper, and in line with the Constitution, that the order sought – which for all intents and purposes in my view provides the remedy to the wrongs and would bring perhaps a temporary remedy until the Constitutional Court confirms invalidity of the Act as it stands – in the period in between the rights at least would henceforth be protected. And the exchange of information or access to information will be available to all persons thus bringing the South African laws, so far as copyright is concerned, in line and harmonious with international law. For that reason the draft order… is made an order of this court.”
But the fight is not over yet. The order of the court now must be confirmed by the Constitutional Court, whose mandate is to confirm the constitutionality of our laws. On behalf of BlindSA, SECTION27 will be applying to the Constitutional Court to confirm this order so that people with visual disabilities can access published materials in accessible formats. SECTION27 intends to apply to the Constitutional Court as soon as possible to have this order confirmed.
Our thanks go to our counsel for the matter, Advocates Jonathan Berger and Thabang Pooe. The inputs of the amicus curi, International Commission of Jurists, Media Monitoring Africa Trust and ReCreate SA were welcome and the court found them valuable in making its determinations.
19D is now part of our law – what remains next is to make sure that it is confirmed, and can be implemented by people who are blind or visually disabled so that they too can access libraries of published works in formats that are accessible for them.
Christo de Klerk, Vice President of Blind SA says “The outcome is that we now have copyright exemptions and no longer need to grovel before publishers and beg for permission to have books converted into accessible formats. We now have the right to do so as we should have had”.
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