If you are blind in South Africa, you still need permission from the editor of a book if you want to create Braille or an accessible electronic version of that book. (Photo: Gallo Images / Foto24 / Bongiwe Gumede)
Almost 25 years ago, in December 1996, President Nelson Mandela proclaimed the progressive and ambitious constitution of South Africa. The document recognizes a wide range of rights, including the right not to be discriminated against on the basis of disability.
Also in 1996 a lesser known law was introduced called Chafee change was passed in the United States. The Chafee Amendment introduced changes to U.S. copyright law that made it possible to produce books in Braille or other accessible formats without the permission of the copyright owner.
Before Chafee, blind people were in a difficult position in the United States. If a student required a book in Braille or in electronic form, the student or a library serving the student had to obtain permission from the publisher of that book to make such a copy in an accessible format. If the publisher said no or ignored the request, the student simply had no legal recourse. He or she would either have to violate the copyright or accept that he or she would not have access to the book.
As if learning with a disability didn’t make life difficult enough, such students should suffer the added outrage of sitting in class without the opportunity to read the prescribed texts that the students sitting next to them read That could simply read the library or buy it at the local bookstore.
In this way, the comprehensive prohibition on copying and reproduction in U.S. copyright law prior to 1996 served as a practical barrier to the education of blind people. So it’s fair to say that up until this point, U.S. copyright law has discriminated against blind people.
The Chafee amendment solved this problem by creating what is known as a copyright exception. Basically, it says that we take copyright law seriously in the US, but we are ready to make some exceptions for people who are blind or otherwise pressure-impaired – we allow them to be copied and reproduced without first asking for permission. It’s an elegant solution that much of the world would adopt.
What about South Africa?
In South Africa there are no copyright exceptions like those in the Chafee Amendment. If you are blind, this is where you still need permission from the editor of a book if you want to create a Braille or an accessible electronic version of that book. If the publisher denies or ignores your request, that’s a shame. The 1978 Copyright Act is clear – there are no exceptions for blind people.
This, Blind SA argues in court files filed with the North Gauteng High Court, makes the South African Copyright Act of 1978 discriminatory and unconstitutional. You’re right.
Blind SA has also seen a wave of international consensus.
As of April 2021, a number of countries and blocs, including the EU, India, Nigeria, the US and the UK, have implemented the Treaty of Marrakech 2013. This groundbreaking agreement has two main goals: to enable copies of books to be made in accessible format without permission from copyright holders (similar to Chafee) and to enable such books to be shared in accessible format across national borders. This is critical as it takes time and resources to make copies in an accessible format. Therefore, it is better to make a book once for everyone than to do it over and over in different countries or in different schools or universities.
What went wrong in South Africa?
As is so often the case, the story of why we still have a discriminatory copyright law 25 years after our rights-based constitutional decision is not an easy one. Although relatively late in the day, some government officials have actually tried to do the right thing.
The South African government supported the Marrakech Treaty and played a constructive role in the final negotiations in Marrakech in 2013. Various government statements also left little doubt that the government, or at least some members of the government, intended to implement the treaty in Marrakech South Africa.
In 2019, six years after Marrakech and after extensive public consultation and heated controversy, parliament even passed a law that included an elegant implementation of the Marrakech Treaty.
This bill had been on President Cyril Ramaphosa’s desk for over a year. Thereafter, he refused to sign it and send it back to Parliament – not because of the provisions of the draft law in Marrakech, but because of reservations he had about unrelated provisions of the draft law, e.g. B. in connection with fair use and retrospective application.
Unfortunately, it does not seem that Parliament is in a hurry to remove the reservations and send the bill back to the President. The dynamics that existed two years ago now seem to have been lost.
Whatever the reasons, the bottom line is that eight years after the conclusion of the Marrakech Treaty and 25 years after the promulgation of our aspired constitution, we still have a copyright law that is both inconsistent with international trends and continues to live awakened It is more difficult than it is easier for the blind.
This gaping contradiction between constitutional rights and the effective suppression of some of the same rights by copyright law will certainly be resolved at some point – but the key question is: will it be two more years, another five, or ten years?
For this reason, Blind SA asks the court to “read” the provisions of Marrakech in the draft law amending copyright law into the copyright law. “Reading in” essentially means adding provisions to the existing law so that the provisions become law immediately.
This would of course only be a temporary measure until parliament can complete its own legal reform process to remove the unconstitutionality of the current law (something Blind SA is asking the court to set a 12 month deadline).
As former Constitutional Court judge Zak Yacoob put it in an affidavit in the Blind SA case:
“My own experience shows me that it is impossible to express in words how urgent this is. The best I can do is say that every day that the current copyright law goes in the form in which literally thousands of blind and visually impaired people are withheld from reading material and the prejudice for them actually irreparable, incalculable and very difficult to put into words. ” DM
Marcus Low has filed an affidavit that is part of Blind SA’s court motion. This piece is written in his personal capacity.