from the defending-rights dept
Our own Glyn Moody has written several posts about how exceptions that have been made to copyright laws throughout the world have picked up steam, but also appear to have left the visually impaired hung out to dry. That finally began to change in 2013 with the Marrakesh Treaty, which was specifically designed to restore the rights of the blind and visually impaired by carving out copyright exceptions so that literary works and the like could be translated either into braille or in such a way so as to be accessible on mediums and devices designed for those who cannot navigate the originals.
While many countries have signed onto the Marrakesh Treaty, one notable exception has been South Africa. South Africa could not sign the treaty specifically because its copyright laws prohibited it. However, in 2021, an advocacy group called Blind SA went to court challenging the constitutionality of South Africa’s copyright laws and won. With that, the court determined that the country’s copyright law was unconstitutional.
Unfortunately, the court’s declaration was suspended for two years to give South Africa’s government time to amend its copyright law to make it constitutional and, ostensibly, to make it so that the country can enter into the Marrakesh Treaty. The blind and visually impaired, it seems, were told to suffer as second class citizens for two more years while the gears of bureaucracy did its thing.
But Blind SA understandably doesn’t want the people it advocates for to suffer in the interim. It has now gone to court in South Africa asking for the suspension to be lifted and for the previous court ruling to be permanent after 1 year if the South Africa government fails to make the changes needed during that time period.
Blind SA is seeking confirmation of the High Court order, but is also arguing that the 24-month period is not needed as the Section 19 read-in already remedies the situation. It wants the reading in to be made permanent after 12 months if parliament has not yet finalised the legislative process for the Copyright Amendment Bill.
It’s hard to think of an argument against this request, given that less than 1% of published literature in South Africa has currently been translated in a format for the visually impaired. That’s an almost complete denial of culture for a class of citizens operating in an impaired state due to no fault of their own.
Because of the obvious morality of such a request, the pushback against it is instead procedural.
While the minister of trade and industry is not opposing the order – and agrees that the Copyright Act is unconstitutional – he is opposing the relief sought by Blind SA as he deems it is not appropriate.
This is because the Section 19D read-in remedy would remove the parliamentary processes, which would be an over-reach and in conflict with the separation of powers. The minister is suggesting the read-in as an interim measure, while parliament fulfils its duties over the 24-month period.
There are also some South African attorneys chiming in stating that the current law, unamended, also grants the government the ability to grant exceptions to copyright law that would give Blind SA what it wants. The problem with that claim is that, if it’s true, why, again, are there virtually no works of literature being translated for the visually impaired? Something is keeping this from happening and it’s almost certainly concerns over being sued for copyright infringement.
This is a travesty. Culture and equal protection under the law are important small “l” liberal concepts. Denying culture to a class of the impaired isn’t just against the purpose of copyright laws, but it’s pure denigration of the blind and visually impaired.