Will There Be a Long Overdue Victory for the Visually Impaired in South Africa?


Serena Nath is an IPilogue Writer and a 2L JD Candidate at Osgoode Hall Law School.


Introduction

Despite great excitement and advancement in intellectual property rights, the rights of the visually impaired have been ignored. Copyright law reform has allowed publishers and innovators to prevent third-party reproduction of their work. However, this also included reproduction for the purpose of creating materials for those who are visually impaired. Innovators could simply not make visually accessible materials, or ignore the requests of those requesting reproduction in accessible formats, which drastically hinders access to materials for those who are visually impaired.

The Marrakesh Treaty

On June 27, 2013, rights for visually impaired individuals were finally advanced with the adoption of the Marrakesh Treaty, a copyright treaty. The Marrakesh Treaty allows for international adaption of printed material into formats that are friendly for visually impaired individuals, such as Braille or audiobooks, by setting international standards. As of May 2022, many countries have ratified the treaty. However, one notable exception was South Africa who could not sign the Marrakesh treaty because its copyright laws prohibited it.

Blind SA v Minister of Trade, Industry, and Competition (and others)

Things began to change when in March 2018 when the South African Parliament adopted the Copyright Amendment Bill. This Bill proposed the insertion of section 19D into the act, which sets out general exceptions regarding protection of copyright works for people with disabilities. The addition of this section would allow for production of materials in an accessible format for those visually impaired. Despite the adoption of such a Bill, however, there has been a lengthy delay in the actual amendment of the Copyright Act to introduce section 19D. As a result, Blind SA, a visual impairment advocacy group, represented by SECTION27 challenged the constitutionality of South Africa’s copyright laws. Blind SA argued that the Copyright Act discriminates against people with visual impairment on the grounds of their disability by violating their right to equality, non-discrimination, dignity, education, freedom of expression, and participation in cultural life.

In September 2021, the Pretoria High Court ruled in Blind SA v Minister of Trade, Industry, and Competition (and others) that South Africa’s Copyright Act of 1978 is invalid for violating the rights of the visually impaired. By declaring the Copyright Act unconstitutional, the Marrakesh Treaty principles could be implemented into the Copyright Act. Additionally, the high court ordered that section 19D of the Copyright Amendment Bill be read into the Copyright Act.

Despite success in the Pretoria High Court, this declaration then had to be confirmed by the Constitutional Court, whose hearing took place on May 12, 2022. There, the Court  reserved judgement. At this point, then, it is anyone’s (educated) guess as to what the final decision will be. Despite this, a lawyer for SECTION27 is hopeful that the eventual ruling will be a victory for the visually impaired.

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