Remedying Copyright Discrimination at the South African Constitutional Court
Global Partnership for Education, Students read braille in class - A blind student at Sebeta School for the Blind checks her answers after taking a geography exam in Ethiopia. Creative Commons.
On 12 May 2022, the South African Constitutional Court heard its first ever copyright discrimination matter brought by Blind SA, an organisation serving the interests of people with print and visual disabilities, on the basis that South Africa’s copyright laws unfairly discriminate against them and violate several constitutional rights.
Notably, the respondents, who are the Minister for Trade, Industry and Competition (“the Minister”), the President, the leaders of Parliament, and the Minister for International Relations and Cooperation, did not oppose the claim of unfair discrimination. The hearing at the High Court too took place in the absence of any substantive opposition by the State. What, then, was the hearing about? In this piece, I set out the route to the Constitutional Court, the basis for the case, and the remedy – with the latter receiving the most attention.
The route to the Constitutional Court
The matter was initially brought before the Pretoria High Court and listed as unopposed. The Court held that the Copyright Act is unconstitutional to the extent that it discriminates against people with visual and print disabilities. Per ordinary constitutional procedure, the Constitutional Court is bound to set down the case for a hearing regarding confirmation of the High Court’s order of constitutional invalidity.
The basis for the case
In three affidavits supporting Blind SA’s founding affidavit, a teacher at a school for deaf and blind children; a blind novelist, journalist, editor, and PhD candidate; and an anti-apartheid activist and former justice of the Constitutional Court of South Africa, set out the manifestations of the globally recognised “book famine” in each of their diverse lives.
They explained the degree to which they, as people with visual and print disabilities, have been deprived of access to materials under copyright. The key problem that they outline is this: the Copyright Act of 1978 does not provide for the conversion of a work into a different format (“format shifting”). This means that even if they were to borrow or purchase a book, they cannot meaningfully read it unless it is converted to Braille or in a format that is accessible for people with visual and print disabilities. The need for such a provision stems from the fact that less than 0.5% of published works are published in an accessible format in South Africa. Counsel for Blind SA (represented by SECTION27, a public interest law centre working primarily in the areas of health and education rights) argued that this state of affairs violates several constitutional rights – chief among these are the rights to equality and non-discrimination, dignity, education, freedom of expression, and participation in cultural life.
Moreover, the Act fails to make provision for cross-border exchange of works under copyright, which along with format shifting, is a key to domestically giving effect to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, which South Africa has made clear its intention to accede to. Acceding to the Marrakesh VIP Treaty would open up a global library of accessible format works for people with print and visual disabilities in South Africa.
“In setting out the constitutional position in South Africa, the judgment will offer guidance for domesticating international treaties as well as reconciling intellectual property and human rights obligations across the world.”
The remedy: reading-in and suspension
Counsel for Blind SA argued that to remedy this ongoing unconstitutionality, the Court should read-in Parliament’s last passed version of a format shifting into the Copyright Act (section 19D of the Copyright Amendment Bill “CAB”), effectively as an interim measure. This, counsel argued, would not infringe separation of powers given that the reading-in would utilise Parliament’s own language – with minor changes to ensure that it is directly operationalised, in the interests of a just and equitable remedy. Further, the reading-in would only remain in force for as long as it takes Parliament to complete its current process of amending the Copyright Act. The judgment in the High Court suspended the declaration of invalidity for a period of 24 months but immediately read-in proposed section 19D.
The Minister did not oppose the immediate interim reading-in, but argued for the Constitutional Court to confirm the High Court’s suspension of the declaration of invalidity for 24 months, leaving Parliament with a set period to cure the defect. Counsel for Blind SA presented in oral argument that there would be no practical effect of suspending the declaration given that Parliament is already in the midst of the CAB process that has its own timeline. The key effect would be symbolic – the State’s continuing failure to recognise when the rights of people with visual and print disabilities have been violated.
The only other point on which the Minister for Trade, Industry and Competition appeared to oppose was on payment of Blind SA’s costs. However, during the hearing, the Minister’s counsel clarified that they would no longer be pursuing that claim. As acknowledged by the bench, this concession by the Minister’s counsel was consistent with the jurisprudence that requiring applicants to pay costs in these circumstances would potentially discourage litigants from challenging the State where rights have been violated.
The remedy: nature and form
All parties to the case agreed that the form of the remedy proposed by Blind SA – the reading-in of a statutory provision – was appropriate. Additionally, two out of the three amici curiae admitted in the case – the International Commission of Jurists, represented by Equal Education Law Centre, and Media Monitoring Africa, represented by PowerSingh Inc – did not oppose the nature and form of the remedy, and made submissions bolstering the applicant’s submissions. The former primarily made submissions on the constitutional importance of South African institutions interpreting international copyright law in light of international human rights law, while the latter drew on freedom of expression and comparative law to demonstrate the statutory form that such provisions have taken across the world.
Only one amicus, Professor Owen Dean, represented by Adams & Adams Attorneys, advanced submissions opposing the basis upon which the legislative framework ought to be declared unconstitutional, and proposing alternative remedies. The first among these was that the Act contains a provision which already empowers the Minister to make regulations that enable accessible format shifting. In large part, this argument rested on an expansive interpretation of “reproduction” in section 13 of the Copyright Act to include all acts required for accessible format shifting, and a subsequent interpretation of section 23(2) (titled “infringement”) to not prohibit cross-border exchange. This submission was countered by Blind SA and the Minister.
Counsel for Blind SA argued that the actual mechanics of accessible format shifting require more than mere reproduction - it often requires adaptation and other types of uses. Since the text of section 13 specifies “reproduction” only, it is not fit for purpose. Additionally, the rights of people with print and visual disabilities cannot be left to the whims of the executive – particularly since the regulations were last amended in 1985. Counsel for the Minister, having taken instructions, stated that the Minister independently held the view that section 13 was not fit for purpose – this was the reason why he had not made new regulations on accessible format shifting under it. Rather, according to the Minister, a statutory provision in the nature of proposed section 19D was the most appropriate vehicle.
The second set of opposing submissions concerned the text of proposed section 19D. Counsel for Dean argued that the proposed section 19D goes beyond the Marrakesh VIP Treaty and therefore was not a suitable remedy. Rather, in the event that the Court were to decide that a reading-in remedy was appropriate, counsel for Dean submitted that Dean’s own formulation be utilised.
Blind SA countered that Dean’s version did not go through a public participation process (unlike proposed section 19D, which went through several rounds of participation) and in any event, that proposed section 19D gives effect to South Africa’s binding international obligations under the United Nations Convention on the Rights of Persons with Disabilities and copyright obligations, while Dean’s version does not take seriously the former. Counsel for Blind SA made clear that the Marrakesh VIP Treaty, in furtherance of which Parliament has conceptualised section 19D, provides a floor and not a ceiling for domestic application.
Finally, counsel for Dean argued that the operation of section 19D would potentially affect the market for audiobooks as it would cause a substitution effect. However, counsel for Blind SA countered that section 19D would only be engaged where an inaccessible format of a work is at issue – where the work is already available in an accessible format, section 19D would be inapplicable.
Broader implications
When judgment in this matter is handed down, it will likely have significant implications for those 32 countries across the continent that are yet to accede to the Marrakesh VIP Treaty. In setting out the constitutional position in South Africa, the judgment will offer guidance for domesticating international treaties as well as reconciling intellectual property and human rights obligations across the world.
