DEMICHELLE PETHERBRIDGE AND JACE NAIR: Access to reading materials for the blind in president’s hands

Today we celebrate World Book & Copyright Day, a day the UN Educational, Scientific & Cultural Organisation (Unesco) selected to pay international tribute to the enjoyment of books and the importance of reading, and to raise awareness about the relevance of copyright laws.

The day is celebrated in more than 100 countries, and in SA today it comes at a time when those who are blind or visually impaired are at a crossroad, and their ability to enjoy the very essence of what is being celebrated is in question.

For decades the blind or visually impaired living in SA have suffered amid a “book famine” — a severe shortage of reading materials. In fact, only about 0.5% of all published material available in our country is in a form that the blind or visually impaired can read, such as braille, large print, Daisy or audio.

A large part of this problem was attributed to the Copyright Act 98 of 1978, the legislation regulating copyright in SA. In terms of this act a blind or visually impaired person who wanted to convert published material such as a book into a format they could read was required to obtain the consent of the copyright holder. This placed a heavy burden on individuals, who were not always able to track down a copyright holder, and even if they succeeded often their requests for consent were denied or ignored. If this consent was not obtained and an individual proceeded to convert a published work into a different, more accessible format, they were criminalised in terms of the act and risked being fined or even imprisoned.

This is not a burden sighted people bear, and the requirements imposed by the act have had a devastating effect on the lives of people who are blind or visually impaired. Pupils attending schools for the blind, for example, have not always had sufficient textbooks for all their subjects in a format they can read. Students attending tertiary institutions have been forced to convert materials into a different format themselves, sometimes without the consent of the copyright holder, to access prescribed or other relevant materials for their studies.

Reading merely for pleasure or interest has also been severely curtailed due to the limited availability of accessible reading materials for the blind or visually impaired. This shortage has diminished individuals’ abilities to engage with materials of their choice and participate more fully in cultural, social, political or academic life through reading.

In an effort to end the damaging effects of the Copyright Act, an organisation called Blind SA, represented by Section27, took the president, and, among others, the minister of trade, industry & competition, to the Constitutional Court in 2022 to challenge the constitutionality of the act for the way it discriminates against the blind and visually impaired.

In a unanimous judgment in Blind SA’s favour, the court found the act to be unconstitutional to the extent that it required those who are blind or visually impaired to obtain the consent of the copyright holder before being able to convert books and other published works into formats they can read.

Important exceptions

Significantly, the court crafted its own exceptions for the blind and visually impaired that allows for the conversion of published materials into a format they can read without the consent of the copyright holder. As part of the order, this court-crafted exception was immediately read into the Copyright Act, but the court noted that this was just an interim solution and gave parliament 24 months to fix the act so that it upholds the rights of the blind or visually impaired and enables them to access books in accessible formats.

This deadline expires in September 2024, leaving parliament with less than six months to amend the act in a manner that complies with the court’s order.

The amendment of the Copyright Act has been on parliament’s agenda for a number of years already. The bill was introduced in the National Assembly in May 2017, but it would take another two years before both houses of parliament approved it and eventually send it to the president for assent in March 2019. More than a year later, and after litigation was launched to prompt the president to sign to bill into law, the president indicated concerns round the constitutionality of the bill and returned it to parliament in June 2020.

Since then the bill has been the subject of extensive public hearings and deliberations in both the National Assembly and the National Council of Provinces. Encouragingly, on September 26 2023, the bill was approved by the National Council of Provinces and on February 29 the National Assembly’s plenary voted in favour of the bill. This marked the end of a severely protracted parliamentary process, and all that remains is the president’s assent for the bill to be enacted into law.

If enacted, the law will introduce the changes required by the court and more, as it contains exceptions for all people with disabilities, including those who are blind or visually impaired, to convert published materials into formats they can read without the consent of the copyright holder.

Once enacted the amended Copyright Act will also allow SA to become party to the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled. This international treaty will allow for the cross-border exchange of reading materials and make hundreds of thousands of titles in accessible formats available through online libraries and consortiums that cannot currently be accessed due to our deficient copyright laws.

All that is missing is the president’s signature. On this World Book & Copyright Day we urge the president to sign the bill and help open up a wider world of information for those who are blind and visually impaired in SA, so that next year we have more to celebrate.

• Petherbridge is an attorney at Section27  and Nair CEO of Blind SA.