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New copyright bill gives Deaf and blind people a fair deal

- Denise Nicholson

The mother tongue for millions of Deaf people in South Africa is SA Sign Language (SASL), which became the 12th official language on 19 July 2023.

Sign language is referred to in Article 6(5) (a)(iii) of the Constitution, in various legislative and government policies, as well as in Article 6(4) of the South African Schools Act 84 of 1996.

Equality for persons with disabilities is enshrined in Article 9(3) of the Constitution and is also included in the following conventions:

  • The Universal Declaration of Human Rights;
  • The UN Convention on the Rights of Persons with Disabilities and its Protocol;
  • Convention on the Elimination of all Forms of Discrimination against Women;
  • International Convention on the Elimination of all Forms of Racial Discrimination; and
  • Convention on the Rights of the Child and Youth Programmes.

South Africa’s Integrated National Disability Strategy was approved in 1997 and the Department of Women, Youth and Persons with Disabilities was established in 2019.

Several laws were also passed relating to disabilities and discrimination, such as:

  • The Employment Equity Act, 1998;
  • The Promotion of Equality and Prevention of Unfair Discrimination Act, 2000;
  • The Social Assistance Act, 2004 and Social Assistance Amendment Bill, 2010; and
  • Equality Act 2010.

International human rights conventions, the Constitution and domestic anti-discriminatory laws all provide the framework for protecting the rights of persons with disabilities, yet their rights to access to dignity, equality and knowledge have been neglected by government and the legislature for decades.

International intellectual property treaties, the European Union’s Copyright Directive, the UK Commission on Intellectual Property Rights, the Gower Report on Intellectual Property, the Hargreaves Report, the World Summit Declaration of Principles, the Copy/South Dossier and the World Blind Union’s Proposed Treaty for the Visually Impaired all recognise the need to “maintain a balance between the rights of authors and the larger public interest, particularly for education, research and access to information”.

South Africa has supported the WIPO Development Agenda since 2007.  It is an active member of the Africa Group and supports its Draft WIPO Treaty on Exceptions and Limitations for the Disabled, Educational and Research Institutions, Libraries and Archive Centres.

So why is there still no balance and equity in our copyright law?

Prof Claudine Storbeck, director of the Centre for Deaf Studies at Wits University, asserts that “in a country which prides itself as learning from its history of segregation and oppression, the privileged sectors of South Africa waged an almost decade-long power struggle, whilst those without agency – the over 5% of the population who have disabilities – were robbed of equitable access to information.

“Whilst claiming the moral high ground in defence of artists and creators in a democratic society, the irony of this elitist Orwellian power struggle infringed on the human rights of the very people who needed defending the most.”

Thanks to Blind SA – with legal assistance from SECTION27 – for instituting action in the Minister of Trade, Industry and Competition and Others case in the Gauteng Division of the High Court in Pretoria, and challenging the constitutionality of the current copyright law.

On 7 December 2021, the high court declared the current Copyright Act (45 years old) to be unconstitutional to the extent that it fails to make provision for exceptions that would enable, through the conversion of works, access to such works by persons with visual and print disabilities. The application was unopposed. 

The Constitutional Court confirmed this ruling on 21 September 2022.

This was a very positive outcome and a big step in the right direction to make reading material accessible to persons with visual and print disabilities.

Due to the nature of the case which focused on people with visual and print disabilities only, the court ruling could not be extended to Deaf persons or those with other disabilities.

There is positive news, though.

The South African Copyright Amendment Bill [B13F-2017] was approved by the National Council of Provinces on 26 September 2023, and passed by the Portfolio Committee on Trade and Industry on 14 February 2024. It now awaits approval by the National Assembly plenary and thereafter, assent by the President.

Key solutions

Storbeck believes that the Bill offers key solutions for people with various disabilities, namely accessible formats (Section 19D) and “fair use” (Section 12A), as well as exceptions for education and related purposes (Section 12B-D).

Section 19C for libraries and other memory institutions will also enhance access to material, especially in the digital space, for people with disabilities.

Regarding fair use, Storbeck recalls that as early as 2019, Prof Coenraad Visser argued that the fair use provisions were “an innovative provision, which will not only position South Africa to benefit from the gains of the 4IR… but will also engender social justice within the copyright-based industry and the larger economy”.

Regarding Section 19D, Storbeck explains that “the accessible formats provision goes well past just braille for blind and visually impaired people, and ensures provision for adaptations, captions, translations and conversions into more visual formats for people who cannot read the language of publication (or read at all), as well as for people with dyslexia or other disabilities that prevent them from accessing information, as well as facilitates access for Deaf people who use South African Sign Language (SASL) as their first language.”

Once Parliament approves the Bill, the President is obliged to act in terms of Section 79(1) of the Constitution.

We trust that in the 30th year of our democracy, President Cyril Ramaphosa will sign the Bill that finally restores constitutional rights to people with disabilities, including equality, dignity, access to cultural life, employment, education and lifelong learning, and the right to language.

Until everyone has access to information, how can we truly celebrate Freedom Day on 27 April this year?

Denise Rosemary Nicholson was the Scholarly Communications Librarian at the University of the Witwatersrand. She retired in 2020. Through Scholarly Horizons, a consultancy she founded, Nicholson continues her work in copyright, open access and scholarly communications in the broader community.

This article was first published in Daily Maverick.