12 May 2022
On September 21, 2021, the High Court of South Africa (Gauteng, Pretoria Division) declared that the Copyright Act of 1978 as invalid for violating the rights of people who are blind or visually impaired. This case between Blind SA (represented by Section27) v Minister of Trade, Industry and Competition was heard on the unopposed roll before Judge Mbongwe, who made the draft order an order of the court. MMA were amicus curiae in the matter.
As noted on the day the judgement was handed down, this is a massive victory for people who are blind or visually impaired, as well as learners with disabilities, who will now be able to access works under copyright in accessible formats more easily!
This vindicates the rights of people who are blind or visually impaired to equality, dignity, basic and further education, freedom of expression, language and participation in the cultural life of one’s choice.
The following order was granted:
– A declaratory order: declaring the current Copyright Act invalid and unconstitutional because it limits/prevents people with visual disabilities from accessing works under copyright in formats that they can read, and does not include provisions designed to enable access to works under copyright as envisaged by the Marrakesh Treaty;
– A ‘reading in’ – or inclusion – of the proposed section 19D of the Copyright Amendment Bill (CAB) to the current Copyright Act to allow an exception to copyright for people with disabilities so that they can convert published works into accessible formats.
As such, BLIND SA, represented by SECTION27, took government to court to challenge this. None of the government departments listed as respondents in the case opposed the case – in other words, they all agree that it is important to change our Copyright Act in order to fulfil the rights of persons with disabilities.
Although this progressive order was granted by the High Court, the battle continues as the order of the court must now be confirmed by the Constitutional Court, whose mandate is to confirm the constitutionality of our laws – and the case will be heard by the highest court in the land TODAY, the 12 May 2022. This is a landmark case for persons with visual disabilities!
Christo de Klerk, Vice President of Blind SA says “The outcome is that we now have copyright exemptions and no longer need to grovel before publishers and beg for permission to have books converted into accessible formats. We now have the right to do so as we should have had.”
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