‘If you can see normally, you can go to the bookstore and buy the book you want to read if you can afford it. Otherwise, you can go to a library and whatever books are in the library you can read, there is no obstacle there,” says Marcus Low, a visually impaired person, editor of Spotlight and an activist fighting for access to books for people who are blind and visually impaired.

The reality for blind and visually impaired people vastly contrasts with the reality Low described – until a landmark Constitutional Court ruling that parts of the Copyright Act are unconstitutional for people living with visual disabilities. 

In a Daily Maverick Webinar on Wednesday, 23 November, Maverick Citizen journalist Zukiswa Pikoli, Low and senior researcher at the Mandela Institute School of Law at Wits University, Sanya Samtani, unpacked the act and the ruling.

Also on the table for discussion was the need to ratify the Marrakesh Treaty and the ongoing efforts by Parliament to amend the act.

Pitfalls of the Copyright Act

The act, which has been in law for 45 years, protects the rights of authors of academic, artistic and creative works by controlling their use and distribution. 

Before the ConCourt judgment, the act required that anyone wanting to convert a book into an accessible format such as Braille or large print needed the permission of the copyright holder. The problem was that the act also removed any obligation from the copyright holder to be immediately contactable, while requests were often denied.

Pikoli explained that anyone who attempted to convert the book without the permission of the copyright holder was guilty of a crime, punishable by a hefty fine and, in some cases, jail time.

Samtani added that the act “sets out civil and criminal penalties for the unauthorised use of works, where there is not explicit authorisation by the creator and the work is used”.

Realising the unconstitutionality of the act for its discrimination against visually impaired and blind people, BlindSA, represented by SECTION27, approached the courts in 2021 to challenge the act.

In a battle between intellectual property and human rights, BlindSA and SECTION27 clinched a landmark victory on 21 September 2022 when the ConCourt declared the act unconstitutional. In a bid to rectify decades of discrimination against blind and visually impaired people, the court crafted an exception, immediately read into the act, where they are no longer required to seek the permission of a copyright holder to convert a book into accessible formats, which had effectively removed the barrier to knowledge.

Read more in Daily Maverick: Copyright Act victory in ConCourt for blind and visually impaired

Samtani said that World Blind Union studies had found that under 10% of all published books worldwide are in an accessible format for people with disabilities. There was no explicit exception in the act allowing for conversion, which means the simple act of conversion was a crime the copyright holder had not granted authorisation.

“Effectively, before the judgment, the Copyright Act allowed for blind people’s right to read to be subordinated to everyone else’s right to read.”

Pikoli, who was covering the case when the judgment was handed down, asked Low what it meant to him as a person with blindness. 

Low said the court effectively decriminalised disabled people’s right to access reading materials and rectified the unfair system overnight.

“Something that would happen while I was studying is I would need a book and have to wait for someone to make an accessible copy, and it might only come a week before exams, and in some cases, the copyright holder would never respond to our requests to make an accessible format copy. We’d be in this crazy position where either I’d have to break the law and make a copy, or I’d have to go without the book. That’s the horrible position that the old law put us in.”

Ratifying the Marrakesh Treaty

The Marrakesh Treaty, which established a set of limitations and exceptions to traditional copyright law, allows for easier production and international transfer of specially adapted books for people with visual impairments and blindness. 

The treaty says that member countries must allow for the conversion of books into accessible formats for people with visual disabilities and also allow for the sharing of books across borders.

Explaining the need for the treaty, Low said: “If there is a big library in the United States with hundreds and thousands of accessible-format books with various electronic formats that are ideal for disability, the treaty facilitates the sharing of the books across borders.”

The treaty was adopted 10 years ago but South Africa has yet to ratify it, which means that while there may be an accessible copy of a particular book, it cannot be accessed, and visually impaired people must start from scratch.

Low added: “Every year the government says all these nice things during Disability Month, which is, incidentally, where we are now. It’s already enforced in 80 countries now. It is just kind of mind-boggling that in South Africa we haven’t ratified this treaty.”

Responding to Pikoli’s question whether the judgment would propel the government into signing the treaty, Samtani said the court had drawn from the treaty and temporarily read into the Copyright Act a provision that permitted making accessible formats.

“The court stopped short of including the cross-border exchange part and that then raises the question of to what extent has the court changed the law in a way where South Africa can accede to the Marrakesh Treaty.”

Santani added that while the judgment doesn’t explicitly allow for the cross-border existence of accessible material, it no longer prohibits cross-border exchange and has removed barriers to South Africa ratifying the treaty.

The highly contested Copyright Act Amendment Bill is currently before Parliament for changes. In 2021, Parliament was given a two-year deadline to institute the changes in the bill. However, there is a question whether there is political will to get it passed before the deadline. Low said: “The stated position of the South African government is that it supported the implementation of the Marrakesh Treaty. I think it’s important to recognise that, at some level, the willingness is there. Part of the delay is the bundling of the treaty to other controversial changes in the bill.” DM