10 October 2024
Blind SA has launched an urgent application in the Constitutional Court, seeking a declarator that President Cyril Ramaphosa has shirked his constitutional obligations by not signing the Copyright Amendment Bill into law. Illustration: Lisa Nelson
Blind SA has launched an urgent application in the Constitutional Court, seeking a declarator that President Cyril Ramaphosa has shirked his constitutional obligations by not signing the Copyright Amendment Bill (CAB) into law. The new law would allow blind and visually impaired people access to books and published works.
It has been two years since the Constitutional Court ruled that sections of the existing Copyright Act were unconstitutional for barring blind people from converting, without consent, books into formats they can read, such as braille or large print.
The declaration of invalidity was suspended for two years to give Parliament time to remedy the defect through the introduction of the bill.
In the interim, the court ordered a reading in of the existing Act, creating an exception for blind people.
But those two years have now passed. The crux of Blind SA’s case is that the court order and the reading in has lapsed, once more shutting the door on the rights of blind and visually impaired people.
Blind SA, represented by public law clinic SECTION27, is seeking an order to compel the President to sign the CAB within ten days. Alternatively, it seeks an order that the Copyright Act be amended to include the previously ordered exception.
“Without the enactment of the CAB, the severe shortage of accessible reading materials in South Africa will continue, as will the ongoing violations of the rights of persons who are blind or visually impaired. Parliament has taken the steps necessary to comply with the court order, and it is therefore critical that the President now be compelled to take the next step,” SECTION27 said in a statement.
The Constitutional Court ruling in September 2022 was a major breakthrough for Blind SA and the people it represents.
Since then Parliament took steps to fix the defects in the Act through the draft bill which contains exceptions to copyright for persons with disabilities.
It was approved in February, but it remains unsigned on the President’s desk.
This has left a gap in the law in terms of how materials can be converted into different formats without the permission of copyright holders.
South Africa also cannot join the Marrakesh Treaty, which allows for cross-border exchange of titles in accessible format, until the bill is signed.
In her affidavit in the urgent application, SECTION27 attorney Demichelle Petherbridge, said the CAB had taken a “long and tortuous route” to get this far.
She said there have been concerns about its constitutionality and there was no indication that the President was close to signing it, or even if he has determined whether it now fully accommodates his reservations about its constitutionality.
In August Blind SA wrote to the President advising of the consequences if he did not sign the Bill, not only to the rule of law but also the rights of people with disabilities.
“Not only would this prevent the state from becoming party to the Marrakesh Treaty, it is likely to create chaos for those who seek to access published works in accessible formats and those who seek to assert rights in materials under copyright,” Petherbridge said.
She said this affected about 6% of the population, or 3.7 million people.
The President was advised that his failure to sign the Bill into law would perpetuate the severe shortage of accessible reading materials in South Africa and the ongoing violations of rights of people who are blind or visually impaired, which both the Constitutional Court and Parliament have sought to address.
In a response, the President’s special advisor, Nokukhanye Jele, said there had been “a number of objections and constitutional issues” raised and the matter would be addressed “as quickly as possible”.
“The responses were non committal,” Petherbridge said.
This at a time when Blind SA and SECTION27 had launched a public campaign drawing attention to the impending deadline, including a “last ditch attempt to convince the President to sign the CAB” through a picket outside the Union Buildings.
“The deadline had now come and gone without the defect in the Act being cured,” Petherbridge said.
“People with visual and print disabilities have been waiting too long already. They cannot be expected to wait, at the very least, another year to exercise their fundamental rights.
“For the longest time, they have effectively been held hostage by fierce battles over the contents and provisions of the bill. The gains they have achieved are now seriously under threat with another lengthy legislative process lurking on the horizon.”
If the court agreed that the President had failed to fulfill his constitutional obligations it had two options. It could order him to sign the bill, or it could revive the reading-in remedy granted two years ago, and keep it in place pending enactment of the remedial legislation.
“The obvious benefit of the first option is that it would respect the legislative process. The rest of the CAB, which remains heavily contested, would not come into effect for up to two years, during which time those with concerns about its constitutionality would be free to approach the High Court for appropriate relief,” Petherbridge said.
“Blind SA is well aware that this court has yet to issue an order of this nature. So out of an abundance of caution, it proposes a second option, that the court simply resuscitate the reading in order previously granted and keep it alive for as long as the CAB is not enacted.”
The President has not yet filed papers in the matter. SECTION27 said it was now waiting for directions from the court.