A group of advocacy for the visually impaired, Blind SA, will this week head to the Constitutional Court to confirm that South Africa’s copyright law is unconstitutional.

The Gauteng High Court declared the Copyright Act unconstitutional The case of 2021 brought by Blind SA and Section 27.

In this case, the groups argued that the law, in its current capacity, violates the rights of the blind or visually impaired, in particular their rights to equality, dignity, basic and further education, freedom of expression, language and participation in cultural life of choice.

The law effectively prohibits or severely restricts parties from adapting works for easier consumption by persons suffering from print or vision impairments, in turn creating a barrier to the exercise of their constitutional rights.

The Media Monitoring Africa Trust said works should be adapted to more accessible formats, including digital formats that allow the use of screen readers, as well as add audio descriptors and subtitles to broadcast media and movies.

However, such adaptation of a copyrighted work may infringe copyright and thus constitute an infringement. According to Blind SA, less than 0.5% of published works in South Africa have been available in accessible formats such as Braille.

In a 2021 ruling, the High Court ruled to “read out” the proposed amendment to the law, section 19D.

This will allow for the exclusion of copyright for people with disabilities so that they can convert published works into accessible formats such as Braille, large print and digital information system (DAISY), without the permission or authorization of the copyright owner.

However, the declaration of unconstitutionality was suspended for 24 months to give parliament time to make the necessary changes to the country’s laws.

Blind SA seeks confirmation of the High Court’s ruling, but also argues that a 24-month period is not necessary as the reading in section 19 already corrects the situation. He wants the reading to become permanent in 12 months, when parliament has not yet completed the legislative process on the copyright amendment.

Defendants in the case are the Department of Commerce and Industry and others who will also present their arguments.

Opposing views

Although the Minister of Trade and Industry does not oppose this order – and agrees that the Copyright Act is unconstitutional – he opposes the help sought by Blind SA as he considers it inappropriate.

This is because the remedy read in section 19D will lead to the elimination of parliamentary processes, which would be excessive and contrary to the separation of powers. The Minister proposes a readout as an interim measure, while Parliament performs its duties for 24 months.

A copyright lawyer, Professor Owen Dean, who is also involved in the trial as a member of the court, is of the opinion that the Copyright Act is not unconstitutional because it already allows the Minister to promulgate regulations that would allow Blind to seek help. SA. .

He said the High Court ruling is not fair or just and too broad – it does not specify exactly which “works” can be adapted or reproduced, bearing in mind that products such as sound recordings can be included.

Earlier, the professor argued that the copyright amendments in South Africa were defective and outdated, and called on the government to bring them into line with modern norms and terminology.

Dean proposes in this case to take other regulatory measures or, if the Constitutional Court confirms the findings of the High Court, to read the amendment in another form.

The case will be heard in the Constitutional Court on Thursday, May 12.

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