Blind SA copyright case all set to be heard in the Constitutional Court
The Marrakesh Treaty, was adopted by member states of the UN’s World Intellectual Property Organisation (Wipo), of which South Africa is a member, in June 2013. Picture: Armand Hough/African News Agency(ANA)
Cape Town - Activists are planning to March to the Constitutional Court on Thursday, May 12 where the Constitutional Court is all set to hear a landmark case in which activists are urging it to confirm that the Copyright Act is unconstitutional for limiting access to books in accessible formats for persons with visual disabilities.
The case has been brought by Blind SA and Section 27, who are challenging South Africa’s copyright law to ensure that all people who are blind or visually-impaired can immediately get access to the vast libraries of published works available to sighted people under the terms of an international treaty.
Known as the Marrakesh Treaty, it was adopted by member states of the UN’s World Intellectual Property Organisation (Wipo), of which South Africa is a member, in June 2013.
It advocates for the rights of the blind and people with visual and print disabilities and made the production and international transfer of specially-adapted books for such people easier by establishing a set of limitations and exceptions to traditional copyright law.
As far back as 2017 the Department of Trade and Industry made a commitment to ratify the treaty as soon as the Copyright Amendment Bill was enacted.
This Bill proposes the insertion in the provisions of the Act of a section referred to as 19D, to create exceptions to the Copyright Act for the benefit of the blind and people with visual and print disabilities.
In line with the declaration of intent to ratify the treaty, Parliament adopted the Copyright Amendment Bill in March 2018, however four years later there has been little to no movement on the matter.
The delay has been blamed on heated debates about other sections of the Bill. In Court papers, the activists have asked 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.
They have also asked that the ‘reading in’ should be made permanent after 12 months if Parliament has not yet finalised the legislative process for the Copyright Amendment Bill.
In September 2021 the High Court found the current Copyright Act unconstitutional for violating blind and partially sighted people’s rights to equality, dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice.
Blind SA and Section 27 argue that the delay is unreasonable and contrary to the relevant provisions of the Constitution as it unjustifiably perpetuates the violation of the rights of the blind, visually and print-disabled persons.
They say it was the endless delay that pushed them to institute the proceedings in the Constitutional Court.
None of the respondents in the case, who are listed as the Minister of Trade, Industry and Competition, the Minister of International Relations and Cooperation, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces and the President of
the Republic of South Africa, are opposing the application.
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