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Constitutional Court Looking Out For The Blind – Copyright



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Imagine not being able or, at least, having the opportunity to
read Don Quixote or Macbeth due to a disability. This is felt
hardest by those with visual and print impairments. Shockingly, the
majority of published books are not published in an accessible form
for those with visual and print impairments.

Central to this problem is the fact that the current Copyright
Act 78 of 1978 (Act) prohibits the reproduction of
literary and artistic works into an accessible form without
authorisation from the copyright owner to do so.

Thankfully, in the recent Constitutional Court
(ConCourt) matter between Blind SA vs Minister of Trade,
Industry & Competition & Others
, the
ConCourt’s eyes were opened.

In short, the Act was declared unconstitutional to the extent
that it: – limits/prevents those with visual and print
disabilities from accessing copyright works that are otherwise
accessible to those without such disabilities, and fails to include
provisions that cater to and ensure that those with visual and
print impairments are able to access copyrighted works.

Accordingly, the ConCourt upheld the High Court’s finding
that the required authorisation from a copyright owner to convert
copyrighted works into an accessible form is discriminatory and
inconsistent with section 9 of the Constitution as it amounts to
unfair discrimination against those with visual and print
disabilities.

Blind SA, the applicant, submitted that copyright owners have
almost exclusive control over the reproduction, publication,
performance, broadcast, transmission and adaptation of their
copyrighted works. If neither the owner nor the Act sanctioned the
aforementioned acts, any use of such work constitutes a copyright
infringement, as set out in section 23 of the Act.

Obtaining authorisation is often an insurmountable barrier for
those with visual and print impairments (for instance: every owner
would have to be approached, individually to grant authorisation),
and the only viable alternative would be to sanction the
reproduction, adaptation of copyrighted works, to a form accessible
to those with visual and print disabilities, by means of a
legislative exemption.

Blind SA, further submitted, and rightly so, that section 13
read with section 39(a) of the Act, only enables the Minister to
pass regulations for exceptions related to the reproducing of
copyrighted works and, accordingly, the Act fails to provide a
statutory basis for affording print-disabled persons access to
copies of copyrighted works.

By impeding access to copyrighted works, the Act unfairly
discriminates against the Constitutionally enshrined rights to
equality, human dignity, basic and further education, freedom of
expression, and participation in the cultural life of one’s
choice. By virtue of being a law of general application, the Act is
not justifiable as contemplated by section 36(1) of the
Constitution.

Resultantly, the ConCourt exercised its broad remedial powers,
in terms of section 172(1)(b) of the Constitution, to read into the
Act, with immediate effect.

The ConCourt ordered that for the 24-month period in which
sections 6 and 7 read with section 23 of the Act are declared
inconsistent with the Constitution, section 13A, as set out in the
judgement, is read in, which incorporates the exemptions to allow
the necessary reproduction and adaptations required to make the
works accessible to visual and print disabled persons.

Hopefully, Parliament addresses the situation promptly so that
the much-needed temporary relief remains in force, so that people
from all walks of life may get to loathe the dreadful Lady
Macbeth.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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