Opening salvo in Blind SA case — ‘Copyright Act a hurdle to freeing the potential of each person’
The text below is a slightly edited version of Advocate Jonathan Berger’s opening address to the Constitutional Court in the Blind SA v Minister of Trade Industry and Competition case heard by the court on 12 May 2022.
Justice Madlanga, and Justices of the Constitutional Court:
One passes through the most beautiful nine-metre-high timber doors to enter the foyer to this Court. Carved into the wood are sign-language symbols and words depicting all the rights enshrined in the Constitution. On either side of the door handle is a plaque, which notes — in all 11 official languages — when the court building was officially opened, and by whom. The door handle itself, in solid brass, is inscribed with Braille.
It appears to be the only Braille in the building.
One can reach the entrance to the foyer by walking up the Great African Steps, passing the court building on one’s left, and Number Four (where black prisoners were housed) on one’s right. Snaking up between the steps is a paved ramp, with the promise of access for those with physical disabilities being rudely interrupted, from time to time, by the occasional step.
Across from the entrance to the foyer, on the ground in front one of the stairwells of the old awaiting trial block, is the text of the preamble to the Constitution. Amongst other things, it states that the Constitution was adopted as the “supreme law of the Republic so as to… [i]mprove the quality of life of all citizens and free the potential of each person”.
That promise continues to be broken, day after day after day, by the failure of the Copyright Act to ensure that persons with visual and print disabilities are able to access works under copyright.
They require access to what are termed accessible format copies, such as Braille, audio versions, copies of published works in large print, and digital formats that enable the use of screen readers.
But the vast majority of books are published in print, with the World Intellectual Property Organization estimating that only one to seven percent of books are published in a format that the 285 million persons with visual and print disabilities worldwide can read.
And yet, the Copyright Act effectively prevents accessible format copies of published works from being made locally, or imported from where they are lawfully made. It does this by making copyright infringement not only actionable, at the instance of the copyright holder, but also a criminal offence.
Almost nine years after the international community agreed on the legal mechanisms to facilitate access for persons with visual and print disabilities, the state has yet to amend the Act in the manner contemplated by that agreement.
To be fair, the state has made clear its intention to legislate in this way, with Parliament already having passed the Copyright Amendment Bill three years ago. Amongst other things, that bill provided for the making and sharing of accessible format copies of works under copyright, and for their import and export.
Through the introduction to the Act of a new section 19D, it sought to give domestic effect to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.
But on 16 June 2020, more than a year after it had completed its passage through Parliament, the bill was referred back to the National Assembly in terms of section 79(1) of the Constitution. Since then, the decision to pass the bill has been rescinded, and it has been retagged as a section 76 bill.
Now, almost two years since the President’s referral — five years since the bill was first tabled in Parliament, and almost seven years since a draft bill was published for public comment — the bill has yet to make its way out of committee.
Nobody knows when it will be ready for reconsideration by the National Assembly, before it is sent to the National Council of Provinces (NCOP) to begin its processes afresh in accordance with section 76. And that process could take considerable time.
The result is that section 19D is effectively held hostage pending the outcome of an ongoing legislative process focused on other issues.
For Blind SA, which seeks to put an end to the book famine, that is just unacceptable. That is why it turned to the high court: to ensure that people with visual and print disabilities are able to access works under copyright, without having to await the enactment (and subsequent coming into force) of the full set of amendments to the Act, in whatever form they may ultimately take.
In certain respects, this case is somewhat unique:
First, everyone in this matter, whether a party or amicus curiae, accepts that the legislative framework as a whole unfairly discriminates against persons with visual and print disabilities, and unreasonably and unjustifiably limits a wide range of other constitutional rights.
Everyone also accepts that the legislative framework should be amended to give full domestic effect to the Marrakesh Treaty.
Second, none of the respondents takes issue with any aspect of Blind SA’s proposed reading-in, with immediate effect, of section 19D of the bill. This includes the Speaker of the National Assembly and the chairperson of the NCOP, who preside over the legislative process, and the President himself, who referred the bill back to Parliament.
So who disagrees with whom, and on what issues?
Insofar as the contemplated declarator is concerned, there is a small disagreement between Blind SA and the Minister relating to its possible suspension. We submit, however, that nothing of significance turns on this minor disagreement.
That leaves the two main issues raised by the first amicus: the source of the rights violations; and should that source be the Act itself, as we submit is the case, what ought to be read into the Act to cure its unconstitutionality.
Everyone other than the first amicus, including the President, is comfortable with the proposed reading in of section 19D. We submit that in the context of this case, where Parliament is already working on the text of that provision, reading in any other text would be an impermissible interference with that process, in breach of the doctrine of the separation of powers.
We submit that section 19D, in its current form, would be both effective and operable, without the need for anything more. But if this Court were to find that section 19D is insufficient on its own to cure the identified unconstitutionality, it would be entitled to amend and/or supplement the text to be read in, to whatever extent is necessary.
Regarding the source of the rights violations, we submit that the legal gymnastics required by the approach adopted by the first amicus show just why it cannot be seriously entertained. But even if the contemplated regulations are permissible, their promulgation would still constitute an affront to the dignity of persons with visual and print disabilities, who would have to leave the realisation of their rights to the whims of the Minister, who may or may not decide to act.
As important as the issues raised by the Minister and the first amicus may be, they should not serve to distract from the substantive issue before this Court: the failure of our policy and lawmakers to domesticate an international agreement that identifies copyright barriers to access, and how these barriers may be overcome, to ensure that persons with visual and print disabilities are able to access works under copyright that the rest of us are easily able to access.
The impact of the Copyright Act on the lives and rights of persons with visual and print disabilities is eloquently explained in four affidavits: the founding affidavit of Blind SA’s CEO, Mr Jace Nair; and the supporting affidavits of retired Justice Zak Yacoob, Mr Marcus Low, as well as a teacher at a school for blind and deaf learners.
No one can read those affidavits and not be moved by how a seemingly innocuous statute has made (and continues to make) life so miserable for an already marginalised community.
In short, persons with visual and print disabilities have waited far too long for their promised rights to be realised. All of the respondents agree. Accordingly, we submit that this Court ought to put an end to that wait once and for all. DM/MC
Jonathan Berger is a practising advocate and has been a member of the Johannesburg Society of Advocates since December 2012. He worked for the Aids Law Project (and its successor Section27) from 2002 to 2011, and prior to that clerked for Justice O’Regan at the Constitutional Court. He served as a member of the Medicines Control Council from 2009 to 2011, and as a member of the Expert Advisory Group to the Geneva-based Medicines Patent Pool from 2011 to 2019. He holds degrees in law and architecture, including a masters in law from the University of Toronto, which focused on international trade law and access to medicines.