How to end a book famine

Written by Andrew Rens on April 30th, 2015

How South Africa can (finally) give access to knowledge to blind and other print disabled people by implementing the Marrakesh Treaty.

When printing made copying of texts easier, the rulers of Western Europe saw this as a dangerous technology, books communicate ideas, including ideas about freedom and equality which might cause people to question the god-given authority of a king to rule. So they gave printers (who were also publishers) the power to control copying of books that they had first printed in exchange for ensuring that dangerous books, such as translations of religious books, were controlled. Later the power to control copying was assigned to authors – to be reassigned to publishers by any author who wanted his (and it was his rather than hers more often than not) book printed.

When the laws creating copying were first formulated and later when they were organised into an international system that imposed rules on copying all over the world blind and visually impaired people were ignored. This is only one example of the many ways in which blind and other visually impaired people have been sidelined, ignored and victimized .

While other people are free to read print books blind and other text disabled people can only do that if  the books are first translated or adapted. That presents challenges but they are not insurmountable. What prevents blind people from reading books is not a disability, nor is it the technical and resource challenges of adapting and translating books. It is a blanket legal prohibition on adapting and translating books even when it is to enable blind and other print disabled persons to do whatever anyone else is free to do, to read. This wide prohibition is contained in copyright laws around the world, but while some copyright laws have special provisions to restore to blind people the same freedom that everyone else has South African copyright legislation does not. The law discriminates against blind people.

But section 9(3) of the Bill of Rights insists

“The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth.”

This discrimination is unconstitutional, and political leaders have recognized this. During the negotiation on the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled the Deputy Minister for Women, Children and Persons with Disabilities, Minister Ipeleng Bogopane-Zulu, stated:

“This is not a treaty being negotiated between the developed and developing worlds, as often portrayed, but is essentially between governments protecting industry and governments protecting their citizens who are marginalised from accessing the products of industry. This treaty is about equality of opportunity for people who have to date been excluded and marginalised due to limitations placed on converting print for people requiring access to it in alternative media. This treaty is therefore about removing barriers to access and fighting discrimination.”

South Africa did not need a treaty to change the copyright legislation to give blind people the freedom to adapt works so that they can read them, the current legislation could have been changed at any time since 1978 when it was passed. Laws that discriminate on the grounds of disability have been unconstitutional since the Interim Constitution in 1993. Yet the 1978 Act has been unchanged.

The Marrakesh Treaty does enable blind and print disabled persons to import books that have already been adapted in other countries so that resources are not wasted. During the negotiation of the Marrakesh Treaty the South African government publicly committed itself to the importance of the treaty in June 2013. Despite this  South Africa has not acceded to the Marrakesh Treaty, nor changed the 1978 Copyright Act.

It is now much easier to do so. Experts at the Intellectual Property Unit at the University of Cape Town have compiled  a guide to implementing the Marrakesh Treaty in South Africa.


How will copyright in South Africa change?

Written by Andrew Rens on April 14th, 2015

When is copyright reform possible?

James Boyle* suggests some answers to this question, based on his experience as expert adviser to the Hargreaves Review. The Review  conducted in the UK resulted in a number of changes to UK copyright law including the introduction of new exceptions. In (When) is Copyright Reform possible Boyle identifies a number of factors that can bring about positive copyright reform including political will to change copyright law, and public engagement with copyright issues. Will these conditions hold in South Africa?

The government department which exercises oversight over copyright recently held stakeholder meetings and received proposals on amendments to the current copyright legislation in South Africa.  The initial impetus for this process seems to be a concern that musicians, are not receiving what is due to them from collecting societies. In 2011 the Copyright Review Commission began an investigation into collecting societies. Why? One reason is a finding by the United Kingdom Intellectual Property Commission, which considered the impact of intellectual property on developing countries, that South Africa receives far less in the way of royalties than remits to wealthier countries – for literary and artistic works. I briefly reviewed the report by the commission when it was released in August 2012,  and Shiham Shaik analysed the implications of the report for universities.

Following the public workshop some fifty legal scholars (including yours truly) wrote a letter to the Department of Trade and Industry stressing the necessity of Flexible Copyright Exceptions.Caroline Ncube explains that copyright law should be changee to end the book famine for the blind and other print disabled persons. The Association for Progressive Communications recommends the inclusion of fair use in the Copyright Act. Will these flexibilities be introduced into the Act? The next step is for the DTI to send a draft bill to Parliament some time soon.

*Professor Boyle is supervising my doctoral thesis.