You may have seen news items discussing a South African copyright case that deals with blind people’s rights to access books. It’s perhaps not that easy to follow, so we’ll try to make it as simple as possible.

South African copyright law has been slow to evolve

The South African Copyright Act dates back to 1978. There is pending legislation that seeks to bring it up to date: the Copyright Amendment Bill, 2015, but this legislation has been held up by all sorts of concerns. One of these concerns is the rights of blind people to access books, or “literary works” in copyright-speak.

The issue regarding blind people and literary works

The Copyright Amendment Bill deals with the issue of the rights of blind people to access literary works in the new section 19D. But because progress has been slow, an organisation that promotes the interests of blind people, Blind SA, felt that the issue of access to literary works for the blind could be delayed no longer, and approached the High Court for an order declaring the Copyright Act to be unconstitutional to the extent that it unjustifiably fails to make proper provision for blind people to access books. The case was unopposed.

The High Court’s judgment

The judge spoke of a “book famine” for blind people. The judge went on to make the point that, although alternative formats such as braille are available for blind people, the Copyright Act does not allow free conversion of works into such formats. As a result, it is necessary for blind people to seek the consent of the copyright owners to convert the works into accessible formats. It is this requirement to seek consent from the copyright owner that is discriminatory and at odds with section 9 of the Constitution. Section 9 of the Constitution provides that it is unconstitutional to discriminate against persons on various grounds, including disability.

The judge declared the Copyright Act, to be unconstitutional to the extent that it fails to make provision for copyright exceptions that make it lawful to convert works into formats that are accessible by blind people. The judge ordered that section 19D of the pending legislation, the Copyright Amendment Bill, be read-in as if specifically incorporated in the Copyright Act, to remove the inconsistency between the Copyright Act and the Constitution.

Confirmation by the Constitutional Court

The High Court’s order was sent to the Constitutional Court for confirmation (as is required for declarations of constitutional invalidity), and various parties entered the fray as amici (friends) of the court, namely,  South African copyright expert, Professor Owen Dean, Media Monitoring Africa Trust and the International Commission of Jurists. Judge Unterhalter’s judgment was handed down on 21 September 2022. The court unanimously confirmed the order of constitutional invalidity made by the High Court. We’ll discuss various aspects of the judgment:

Identifying the issue

The judge identified Blind SA’s issue to be this: the scarcity of published literary works in accessible format copies for the use of people with visual and print disabilities. This scarcity, he said, was attributable to the difficulties involved in getting the required authorisation from the owners of the copyright in the literary works. He said that copyright legislation must take account of the differences and difficulties that people with visual and print disabilities may experience.

Unfair discrimination under the Constitution

The judge’s main finding was that the requirement on blind people to seek authorisation from the copyright owner constitutes unfair discrimination on the ground of disability, thus infringing section 9(3) of the Constitution. He went on to say that it also infringes a number of other constitutional rights;

• dignity (section 10);
• freedom of expression (section 16(1)(b));
• basic education (section 29(1)); and
• language and culture (section 30).

The judge made the point that the requirement of authorisation drastically limits access to literary works, impairs the freedom to receive information and, in turn, impart information, and it also limits the participation of persons with disabilities in the cultural life of their choice.

Confirmation of the High Court’s order

The judge confirmed the order of the High Court. Sections 6 and 7, read with section 23 of the Copyright Act, are unconstitutional, invalid and inconsistent with the rights of persons with visual and print disabilities, to the extent that these provisions limit the access of such persons to published literary works, and artistic works as may be included in such literary works, in accessible formats (like braille).

An interim measure

However, the Constitutional Court rejected reading-in the new section 19D from the Copyright Amendment Bill as an interim measure because it was poorly drafted, too wide and imprecise. Instead, the court preferred a reading-in of a section 13A, ‘Exceptions applicable to beneficiary persons’, which will endure for 24 months to enable Parliament to remedy the constitutional defect in the Copyright Act. The practical effect of this is that in the interim, the current Copyright Act will be deemed to include provisions that allow permitted entities to convert literary works to a format that is accessible to blind people.

This is a good example of the Constitutional Court flexing its muscles to advance the rights of vulnerable persons.

Reviewed by Waldo Steyn, an Executive in ENSafrica’s IP department.

Jeremy de Beer

Trainee Associate IP

[email protected]