Leading copyright law experts and disability rights activists are advocating for President Cyril Ramaphosa to sign the Copyright Amendment Bill into law. They say the Bill’s assent will end discrimination against blind people who cannot read copyrighted reading materials in accessible formats.
The National Assembly passed the Copyright Amendment Bill in December and the National Council of Provinces passed it in March. The final step before the bill becomes law is agreement. Once Ramaphosa signs the bill, it becomes law and relevant regulations will follow.
The bill amends the Copyright Act of 1978, which has no provisions for people with disabilities. This means that every time a person who is blind, deaf, partially sighted, dyslexic, paralysed or in other ways unable to read or listen to a book or information source that everyone else can read, they first have to obtain copyright permission so that the work can be made accessible in Braille or other applicable formats. But the effort involved often means that in practice the person is only likely to access the text if it is already available in a suitable format through the South African Library for the Blind or other such institutions.
Denise Nicholson, a scholarly communications librarian at the University of the Witwatersrand and a member of the university’s disability rights forum, says that waiting for copyrighted works to be made available in accessible formats is not always a quick process.
“Rights holders do not always respond timeously, or at all, to requests for copyrighted works to be made accessible to the visually impaired and the blind. Also, costs and copyright fees for conversions are high.
“It is not always a matter of direct conversion to an accessible format. Often the work has to be edited or text moved around to make it readable by text-to-speech software. For example, footnotes need to be moved from the bottom of the page to next to the text being referenced.
“Mathematics requires a lot of editing and reworking for accessibility purposes. For visually impaired persons and those with dyslexia, often text needs to be reformatted or enlarged to make it readable.”
Discrimination and access
Andrew Rens, an expert in South African technology law, says the Copyright Act in its current form is discriminatory.
“In South Africa, everyone is entitled to receive and impart information. One aspect of this right is the freedom to read. Neither the government nor anyone else is entitled to tell adults what they are allowed to read. But the 1978 Copyright Act prohibits persons with disabilities from reading texts and receiving information.
“For example, section 6(f) prohibits making an adaptation. But in order for a blind or visually impaired person to read, they need to use technology, which makes what the 1978 act calls an adaptation. The 1978 act thus discriminates against blind and visually impaired persons by prohibiting them from experiencing the same freedom to read that everyone else enjoys.”
Zuleikha Abrahams, a blind part-time master’s student in disability studies at the University of Cape Town (UCT) has firsthand experience of the difficulties in accessing copyrighted reading material in suitable formats for the blind.
When she lost her eyesight 11 years ago, she sought help to read from the Cape Town Society for the Blind. The organisation trained her to use JAWS software, which creates text-to-speech output or uses a refreshable Braille display, to read.
But she only had access to the software if she visited the organisation.
“Ordinary people who are in the middle to low income [brackets] can’t afford to buy the software. I found a sponsor to buy it at R16 000 and that was in 2014. I don’t know the price currently. But there is software that is free. You can download it and they just ask for a donation.”
Abrahams says that gaining access to material in a format she can read is “not always a quick process. I was looking for a book once and I couldn’t get it as an interlibrary loan. It was on Amazon. I had to send it to UCT’s disability lab and they had to convert it into MS word.”
Conversion software isn’t always perfect either. “If you convert it, there are typos sometimes. And if you are a law student, for example, then you need the detail.
“Normally I can cope because, for me, it’s okay. I can get the gist of it. I can manage with spelling errors. The other issue is confidentiality. If you convert a personal document, it is by someone else who can read your personal information.”
Zuleikha says some publishers insist on certain criteria before releasing copyrighted works in an accessible format for the blind.
“They wanted us to provide proof of purchase, so we would buy the book and then they would release the PDF of the book,” she says.
An inclusive bill
The Copyright Amendment Bill’s assent into law is the lever for the Marrakesh Treaty to become a practical reality in South Africa. The treaty makes it easier to produce and make available specially adapted books for the visually impaired through amendments to copyright law.
South African authorities will ratify the Marrakesh Treaty as soon as the bill has been enacted. Member states of the World Intellectual Property Organization adopted the Treaty in 2013.
But the Copyright Amendment Bill is even broader in its inclusivity.
Blind SA chief executive Jace Nair says, “The Bill goes wider than the Marrakesh Treaty, as it provides exceptions not only for visually disabled persons, but also for persons with other disabilities. Marrakesh sets a baseline and some other countries which have ratified the Treaty, such as Australia and Singapore, have also gone wider.
“Existing legislation does not have exceptions and limitations and no provision for reproduction into accessible formats. This is not in line with the Constitution of South Africa, the [United Nations] Convention on the Rights of Persons with Disability that South Africa ratified with the optional protocol in 2007.
“Less than 0.5% of published works are available in an accessible format, mainly produced by non-profit organisations. Most of these are in English, with some in Afrikaans and very few in our African languages.”
According to section 79 of the Constitution, which provides the details for assent, the president is obliged to sign the Copyright Amendment Bill into law within a reasonable period. If there are serious reservations about the constitutionality of the bill, he must refer it back to the National Assembly for reconsideration.
The bill has been on the president’s desk for six months. Presidential spokesperson Khusela Diko says “it has not been signed … there is no timeframe. The president is consulting about the concerns that have been raised by certain stakeholders and whether indeed the bill is addressing those concerns.”
When asked who the president is consulting, Diko said the minister of sports, arts and culture and the Department of Trade and Industry.
The comprehensive bill has stirred up heated debate, particularly among intellectual property holders around its “fair use” provision, which allows for certain exceptions and limitations. But both supporters and critics want the president to make a decision.
Exceptions and limitations refer broadly to rights within copyright law to use protected works without licence or permission of the rights holder to serve various public interests. Those in the education sector are among public interest stakeholders advocating for the bill to be passed into law as they say it responds to the need for accessible and affordable education.
“University students will be able to copy extracts from copyrighted works or receive course packs containing extracts from books or journal articles,” says Nicholson. “Academics and students will also be able to quote other researchers’ writings or use others’ images, graphs or charts in their own scholarly writing, with appropriate acknowledgement.”
The Copyright Act of 1978 allows for very limited copying for educational purposes, according to Nicholson. “Copyright has to be cleared by librarians for all material placed in a course pack or on an e-learning platform. The bill will allow this without having to clear copyright and pay high copyright fees.”
The South African Democratic Teachers Union (Sadtu) has thrown its weight behind the bill. “We support the bill for education and believe it will help achieve the sustainable development goals,” says Sadtu general secretary Mugwena Maluleke. “We believe the bill is sustainable and all the limitations and exceptions are balanced with the recognition of creators and innovators.”
“This bill is also in recognition of open source,” he says. “Why can’t we in the South access knowledge in the same way that has helped the North advance?”
Creativity and livelihoods
Maluleke says Sadtu believes it is a “balanced bill because the collecting societies and administrators have not always been fair to creators. Musicians have died as paupers to the extent that many of them were not encouraged to be creative.”
Rens says the failure of collecting societies to pay out royalties is what spurred the bill and that it is beneficial to those in creative industries. “The Bill grants creators new royalty rights and grants visual artists a resale royalty right.” Additionally, it makes collecting societies more responsive to creators, he says. “The fair use clause helps creators by enabling them to create parody, pastiche and transformative uses.”
But the Coalition for Effective Copyright has petitioned Ramaphosa not to sign the Copyright Amendment Bill into law, saying it will threaten creators’ livelihoods.
ReCreate co-founder Ben Cashdan disagrees. “We have been saying all along that the Copyright Amendment Bill is good for the creative industries in South Africa. Countries like the USA, which have flexible and fair exceptions to copyright, have the most vibrant filmmaking and publishing sectors. In fact, flexible exceptions to copyright promote innovation in sectors as diverse as video game development and artificial intelligence.”
The South African Communist Party has backed the bill. It says “many artists find themselves obliged to sign contracts with record companies, producers or distributors/publishers that deprive them of royalty payments for their work. The enactment of the bill will create mechanisms for the artists to receive a fair share of royalties and prohibit unfair contracts. The exploitation of our artists must be brought to an end.”
This story has been updated to include an original quote about royalty rights.