New section 13A of the Copyright Act limits copyright holders’ exclusive rights in literary works for the benefit of visually and print disabled persons
By Thabiso Phiri, LLM student and research assistant
The Constitutional Court of South Africa (‘the Court’) in Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33 on 21 September 2022 declared that with immediate effect, sections 6 and 7 read with section 23 of the Copyright Act are unconstitutional insofar as they limit persons with visual and print disabilities’ access to accessible format copies of published literary works and artistic works which may be included in those literary works. The declaration is suspended for the next 24 months to allow amendment of the Copyright Act to facilitate such limitations. The court held that during this period, the following section is deemed to be part of the Copyright Act:
“Section 13A Exceptions applicable to beneficiary persons
(1) For the purposes of section 13A—
(a) ‘accessible format copy’ means a copy of a work in an alternative manner or form which gives a beneficiary person access to the work, including to permit the person to have access as feasibly and comfortably as a person without visual impairment or other print disability. The accessible format copy must be used exclusively by beneficiary persons and it must respect the integrity of the original work, taking due consideration of the changes needed to make the work accessible in the alternative format and of the accessibility needs of the beneficiary persons;
(b) ‘beneficiary person’ means a person who—
(i) is blind;
(ii) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or
(iii) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would normally be acceptable for reading regardless of any other disabilities;
(c) ‘literary works’ means literary works as defined in section 1 of this Act, and shall be taken to include artistic works forming part of a literary work;
(d) ‘permitted entity’ means an entity, including a government institution or non-profit organisation, that provides education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis, and has the provision of such services as one of its primary activities or institutional obligations.
(2) A permitted entity may, without the authorisation of the owner of copyright in a literary work, make an accessible format copy of the literary work; obtain from another permitted entity, an accessible format copy, and supply those copies to beneficiary persons by any means, including non-commercial lending or by electronic communication by wire or wireless means, and undertake any intermediate steps to achieve those objectives, provided that all of the following conditions are met—
(a) the permitted entity wishing to undertake said activity has lawful access to that work or a copy of that work;
(b) the work is converted to an accessible format copy, which may include any means needed to navigate information in the accessible format, but does not introduce changes other than those needed to make the work accessible to the beneficiary person;
(c) such accessible format copies are supplied exclusively to be used by beneficiary persons; and (d) the activity is undertaken on a non-profit basis.
(3) A beneficiary person, or someone acting on their behalf, including a primary caretaker or caregiver, may make an accessible format copy of a work for the personal use of the beneficiary person or otherwise may assist the beneficiary person to make and use accessible format copies where the beneficiary person has lawful access to that work or a copy of that work.”
Section 13A as crafted by the Court is a hybrid of provisions of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh Treaty’) (arts 3, 4(2) and (4) and 5) and the proposed s 19D as contained in the Copyright Amendment Bill [B 13B—2017] (‘the CAB’). It can be concluded that the Court was guided by the three-step test that is adopted when formulating exceptions and limitations to the exclusive rights of copyright holders. The three-step test is contained in article 13 of the Agreement on Trade-Related Aspects of Intellectual Property (‘TRIPS’) and is reiterated in article 11 of the Marrakesh Treaty. It entails that the exclusive rights of copyright holders may be curtailed in certain special cases which do not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the copyright holder.
Further, s 13A a necessary measure that allows equal access to literary works thereby upholding the Constitution of the Republic of South Africa and South Africa’s obligations in the Convention on the Rights of Persons with Disabilities in this regard.
In crafting s 13A, the Court went at length to emphasise that the right of adaptation must also be curtailed, in addition to reproduction, because by interpretation, the perceived accessible format copies require more than just reproduction which may be too narrow to accommodate adaptation. This is the reason why the suggested solution to resort to regulations under s 13 of the Copyright Act was rejected by the court.
Unfortunately however, since Blind SA pleaded its case before the High Court (in Blind SA v Minister of Trade, Industry and Competition Minister of International Relations and Cooperation 2022 JDR 0195 (GP)) on literary works and artistic works contained therein, for the benefit of persons with visual and print disabilities, s 13A is limited to those works and that category of beneficiary person. As Professor Ncube posits here, ‘[South Africa] 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)’. In so far as other disabilities and works are concerned, the beneficiaries would have to wait for finalisation of the long awaited amendment to the CAB. Broadly however, it can be argued that the Court’s intervention is a step in the right direction towards making exceptions and limitations that facilitate the enjoyment of published literary works.
For other analyses and comment, see
Sanya Samtani ‘South African Constitutional Court Rectifies Copyright Discrimination for People with Disabilities’ September 26, 2022, Oxford Human Rights Hub
Chijioke Okorie ‘Many ways to skin a cat (Pt 2): South Africa’s Constitutional Court upholds the declaration on the unconstitutionality of parts of the Copyright Act’ September 21, 2022, IPKat