Comments to the Portfolio Committee on Trade and Industry on the alignment of s19D of the CAB to the Marrakesh Treaty
The provisions on access for persons with visual and print disabilities in the Copyright Amendment Bill (CAB) have been the focus of much debate which those following the copyright reform process over the last several years are well aware of. There is pending litigation by BlindSA on which BlindSA provided a submission and, consequently, which I did not address. The provision s19D was not the list of sections referred back by the President in his letter dated 16 June 2020 to Parliament for reconsideration, however in its call for comments dated 4 June 2021, Parliament asked for comments on the alignment of the Bill with international agreements including the Marrakesh Treaty. It was on the basis of this that I sought to make a contribution.
I submitted written comments and a PowerPoint presentation to the Portfolio Committee (PC) on Trade & Industry on the alignment of s19D to the Marrakesh Treaty prior to the oral hearings held on 11-12 August 2021. I kept the written comments as brief and accessible as possible, in accordance with the parliamentary guidelines on submissions. I provided some references in the presentation and appended some academic literature to my email to the PC Secretariat for further in-depth details (see list below). The hearings are available on Parliament’s YouTube channel and I presented my views on Day 2 (12 August) at about 4.30 pm.
The gist of my submissions was the following: On a literal reading, the President’s letter of referral did not expressly raise any specific matters in relation to the proposed s19D. Since the call for comments asked for views on alignment with the Marrakesh Treaty, the opportunity has been taken to engage with some objections made in relation to the Marrakesh Treaty by others in relation to (1) going beyond the Marrakesh Treaty's minimum standards by providing for limitations and exceptions for persons with other disabilities in relation to works beyond print/text works and (2) the suitability of the provisions on authorised entities and cross border exchanges. As has been shown by research (see list below), many Marrakesh Treaty contracting states, in which the treaty is in force, go beyond the treaty by providing limitations and exceptions beyond the treaty’s narrow scope and focus on ending the book famine. Further, discussions at international level have been focused on the broader concerns of other disabilities and other works beyond those provided for by the Marrakesh Treaty. It is therefore prudent for South Africa to take the broader approach in addition to compliance with the treaty. More importantly, the country is bound by both section 9 of the constitution and article 30.3 the Convention of the Rights of Persons with Disabilities to ensure equal access to copyright protected works (not only print/text works) for persons with disabilities (not only visual disabilities). I argued that the CAB's terminology of ‘a person as may be prescribed and that that serves persons with disabilities’ is broad enough to include authorised entities and indicates scope for refinement in accompanying regulations. However, in the interests of enhancing understanding and co-operation, I made some recommendations pertaining to inclusion of the terminology used in the Marrakesh Treaty by incorporating a definition of authorised entities and using in it the Bill, for instance at s19D(3) on cross border exchanges of works to more closely align the CAB to the Marrakesh Treaty. I argued that the definition of person with a disability is broad enough to include visual and print disabilities and ought to be retained in view of the CAB's objective to provide for more disabilities than those in Marrakesh.
In my remarks, I noted that s19D has been generally well received by those who spoke at the hearings and who have previously submitted written submissions or other written commentary elsewhere, although some alignment issues had been raised. In response to some discussion at the hearings about the use of regulations by speakers prior to me, at the end of my oral presentation I stated that, in my opinion, the option of regulations under s13 of the Copyright Act as it stands is viable but would not go far enough as the Copyright Act does not provide for the right to make available and the Marrakesh Treaty provides for Limitations & Exceptions in relation to reproduction, distribution and the right to make available. The regulations under the Copyright Act can only cover the exclusive economic rights that are currently available and would have to be based on an enabling provision (s19D) in the Act which provides for limitations and exceptions for (1) persons with visual and print disabilities in accordance with the Marrakesh Treaty and (2) for persons with other disabilities in relation to other works which goes beyond the Marrakesh Treaty (national exceptions referred to in article 12 of the Treaty). The right to making available would only be introduced after the passage of the pending reforms.
I found the experience of presenting an oral submission on a virtual platform being broadcast live quite nerve wrecking as we were running about 90 minutes behind time and were under pressure to be succinct. Admittedly, I could have expressed my views more elegantly had the circumstances and schedule been less punishing. Nonetheless, I hope that the written submission and supplementary material provided clarification, wherever it may have been needed.
Many views were shared by various stakeholders and commentators about both the persons making submissions and the content of their submissions during the hearings which we will all be pondering over for some time to come. As academics and legal practitioners we are accustomed to civilly debating differences of opinion on the meaning and import of the law. That indeed was the whole point of the process, to place different views on the table for the consideration of the PC with the assistance of the office of the Parliamentary Legal Advisor and other legal expertise or resources they have at their disposal.
12 August 2021
List of selected references
- Caroline B Ncube, Blake E Reid and Desmond O Oriakhogba ‘Beyond the Marrakesh VIP Treaty: Typology of copyright access-enabling provisions for persons with disabilities‘. J World Intellect Prop. 2020; 1– 17. 2.
- Laurence R. Helfer et al., Copyright Exceptions Across Borders: Implementing the Marrakesh Treaty, 42 European Intellectual Property Review 332-340 (2020)
- Adv Myburgh Letter from Adv Myburgh on the position of the Panel of 4 experts, 4 March 2019
- Blake E Reid, B. E., & Caroline B Ncube (2019) Revised scoping study on access to copyright protected works by persons with disabilities (SCCR/38/3).
- ARIPO (2018) ARIPO Guidelines for the Domestication of the Marrakesh Treaty
- European Commission (2018) The European Union joins the Marrakesh Treaty
- Blake E Reid, & Caroline B Ncube (2017). Scoping study on access to copyright protected works by persons with disabilities (SCCR/35/3/REV).
- Laurence R. Helfer, Molly K. Land, Ruth L. Okediji, and Jerome H. Reichman (2017) The World Blind Union Guide to the Marrakesh Treaty Facilitating Access to Books for Print-Disabled Individuals ( Oxford University Press)
- García Iriarte, E., O'Brien, P., McConkey, R., Wolfe, M. and O'Doherty, S. (2014), Identifying the Key Concerns of Irish Persons with Intellectual Disability. J Appl Res Intellect Disabil, 27: 564-575. https://doi.org/10.1111/jar.12099
- Van Wiele, B. 2014. The ratification and implementation of the Marrakesh Treaty: a look at the future of South African Copyright Law. University of Cape Town.
- WIPO (N.D.) Summary of the Marrakesh Treaty