Let’s raise a glass to a victory for disability rights in South Africa!
In this blog post, I will explain the situation concerning the Copyright Act and the Constitutional Court victory in simple terms, as I know that many aren’t aware that there even was a court case, what it was about, why it matters, and why the disabled community is happy about the judgement. It will probably be one of my shorter blog posts, but this is also a good exercise in conciseness for me. As my readers will know, I love to ramble, but I have just recently accepted a job as a writer at a company that develops learning material, and I was reminded that word limits are a thing, (I said, rambling)…
• Why are we Celebrating?: Last Wednesday (21 September), a judgement by South Africa’s constitutional court found the Copyright Act of 1978 unconstitutional for unfair discrimination towards people with print disabilities. This does not only apply to blind or visually impaired individuals, but also to people with other disabilities that impede them from reading printed material. These can include learning disabilities such as dyslexia, and disabilities effecting physical dexterity, amongst others.
• What was wrong with the Copyright Act?: Before this historic judgement, people with print disabilities would have had to secure permission from publishers and copyright holders to reproduce reading material in accessible formats, whether those be braille, audio, or electronic formats accessible with a screen reader or other technology relating to accessibility. This severely limited the variety of literary works to which a large demographic of South Africans had access. Not only is it a slow and cumbersome process, but it is something that people who are not print disabled would never even have to worry about after purchasing a printed book. Therefore, it constitutes unfair discrimination.
• How did the change come about?: BlindSA (an organisation of and for blind South Africans that advocates for their rights and provides various empowering services) along with SECTION 27 (a public interest law centre that focuses on equality and social justice related issues) took the case to the High Court of South Africa, which ruled in their favour. Following this, they took the matter to the Constitutional Court for confirmation of the finding that the existing Copyright Act was invalid. Again, they were victorious, and the Constitutional Court effectively ended what has been dubbed the “book famine”, by making a judgement that provides for the exception to copyright for people with print disabilities (and organisations such as libraries that cater to them) for which many in the disabled community have been advocating.
Now that I’ve answered the most basic “why”, “what” and “how” questions, with a bit of “who” sprinkled in, let’s take a closer look at the deeper “why” when it comes to the importance of all of this in relation to the South African Bill of Rights, specifically relating to the rights to equality, human dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice.
• Equality: It addresses and goes a long way towards rectifying the fact that disabled South Africans with print disabilities have (up until now) lacked legal access to thousands of literary works to which those without print disabilities have had access.
• Human dignity: It addresses the fact that it is an important part of human dignity to be able to engage with the wealth of ideas and knowledge out there that contributes towards personal advancement and well-being.
• Basic and further education: Access to educational material such as textbooks is already a challenge in South Africa (especially for children from disadvantaged communities) but it is even more of a struggle for children with print disabilities. In addition, those seeking higher education often do not have timely access to the articles, books and other educational material that they need. It stands to reason that an amended Copyright Act would have a massive impact on inclusive education.
• Freedom of expression, language and participation in the cultural life of one’s choice: To be able to express one’s self, one needs to learn expression (such as writing and language skills, as well as the ability to find information in order to form and voice opinions) from the expression of others. To learn how to write music, one needs to learn to read music. To experience freedom in terms of one’s language of choice, one needs to engage with material in that language in order to express one’s self, for the same reasons as I’ve just mentioned. To fully participate in the cultural life of one’s choice, one needs to learn about that cultural life. No, written material is not the only way to learn about or participate in cultural life, but it is bound to contribute significantly in terms of how much one is able to learn and participate in an in-depth fashion. So yes, amending the Copyright Act to be more inclusive will allow for this as well.
I would like to briefly address the question of whether amending the Copyright Act will endanger intellectual property (IP) rights. I will not do an in-depth analysis of this, but suffice it to say that such an amendment is not immediately turning all literary works into a free-for-all in which someone can simply claim to have a print disability, and then just distribute someone else’s work to all their friends for free. Of course, people may (and probably will) still do this, but people who are not print disabled could as easily borrow a book from a library, scan it and make a few hundred copies, and then distribute them, if they so pleased. Amendments to the Copyright Act to bring it in line with the constitution would merely mean that, for example, if you or your organisation were to purchase printed material, you would be allowed to take steps to convert it into an accessible format so that it could be accessed by people with print disabilities without first asking for permission from the copyright holder.
A further point that I would like to make is that an incredibly important result of the constitutional court judgement is that making material accessible will no longer open people with print disabilities up to criminal and civil liability, and rightfully so. Trying to get equal access to freedoms that are guaranteed in our constitution’s Bill of Rights is in no way criminal.
So what are the next steps? Well, the judgement compels parliament to finalise the Copyright Amendment Bill within the next 24 months, and in the mean time, there is a provision that permits blind and visually impaired persons to convert material into accessible formats immediately without permission. The hope is also that the government will finally ratify the Marrakesh Treaty.
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled essentially mandates countries to provide easier access to printed works through the use of accessible formats by amending their copyright laws to allow for this. It was originally ratified in Marrakesh, Morocco, (hence the name) in 2013, but South Africa did not sign the treaty, despite ongoing pressure on the government by disabled advocate groups. The recent constitutional court judgment has given people with print disabilities hope that this might still be in the cards.
As previously mentioned, this is a victory for disability rights in South Africa. It shows that disability advocacy and activism truly works, when approached strategically. However, it is not only a victory for disabled South Africans. It is generally a victory for all South Africans, because it once again proves why (as has often been said) we have one of the best constitutions in the world.