Update:  South African Multi-Stakeholder group has issued a Declaration in
Response to the WIPO Treaty for Improved Access for Blind, Visually Impaired and other Reading Disabled Persons (TVI).

When the World Intellectual Property Organisation Standing Committee on Copyright and Related Rights meets from 14 to 18 December 2009 a possible treaty on exceptions and limitations to copyright for visually impaired persons will be on the agenda.

Countries participating in the WIPO meeting are considering the Proposal by Brazil, Ecuador and Paraguay, relating to limitations and exceptions: Treaty proposed by the World Blind Union (WBU) at the Copyright Committee of the World Intellectual Property Organisation on May 25, 2009.

What are the legal considerations from a South African perspective of the proposed exceptions and limitations?

How would the treaty proposal interact with existing South African law?

The most important law in South Africa is the Constitution which is the supreme law. South African supreme law requires that visually impaired persons should not be discriminated against on the grounds of their impairment (section 8 of the Bill of Rights). The South African government is obliged not only to prohibit such discrimination but take positive steps to ensure that visually impaired persons enjoy the progressive realisation of their rights to education (section 29) and access to information (sections 16 and 32). The progressive realisation of these fundamental rights is currently constrained by dual limitations on the adaptation of material for the needs of visually impaired persons.
Firstly the current Copyright Act, drafted decades before the advent of democratic government, forbids the South African government from simply adapting materials to serve the needs of visually impaired citizens. Secondly even if permission is obtained for ta particular he adaptation of a particular work then that work must be adapted in South Africa, even if it has been adapted elsewhere. Adaptation is costly, so the duplication of adaptation efforts is grossly ineffecient.

The proposed minimum exceptions and limitations offer a solution to the problem created by legislation passed by the previous non-democratic state which limits the rights of visually impaired South Africans in an unconstitutional way. As a result amending South African copyright law in line with the proposed Treaty to enable visually impaired persons to exercise their rights to education, and information is not just desirable but required by the supreme law, the Constitution. The proposed Treaty will assist to make exceptions and limitations in South African legislation for visually impaired persons much more effective because it will address the second factor, the restrictions on the import of materials adapted for visually impaired persons, by permitting materials adapted in countries with relatively more resources to be shared in South Africa. The Treaty is in harmony with the supreme law of South Africa, the Constitution 106 of 1996.

How will the treaty proposal interact with existing international obligations of South Africa?

Like all sovereign nations South Africa is entitled to agree with other sovereign nations to vary its existing obligations in terms of international law. Although a possibility for South Africa this is not necessary in the case of the proposed Treaty which intends to harmonise minimum exceptions for visually impaired persons. Minimum exceptions for visually impaired persons fit into the types exceptions guaranteed to countries by the agreement on Trade Related Aspects of Intellectual Property.

What are the possible benefits of or concerns about the treaty proposal, including with regard to the objectives of the treaty proposal, how those objectives could lead to improved access for the blind and visually impaired, and any concerns about the implementation of the proposed treaty provisions in South Africa or abroad?

A major concern is that the overbroad provisions of the proposed enforcement treaty (ACTA) currently being written without the participation of South Africa and most developing countries will make cross border transfer of materials adapted for visually impaired persons into criminal offences. Apparently even though South Africa and most developed countries are not permitted to be party to the ACTA planning it is intended to be unilaterally imposed on South Africa and other developing countries. Unfortunately its impossible to engage in deeper analysis the likely negative impact of that treaty on the rights of visually impaired persons since it is being negotiated in secret.

Globally far too few resources are available to address the needs of visually impaired persons. Currently those resources are being wasted, as each effort to adapt material for visually impaired persons whether permitted by national exceptions or through voluntary arrangements is confined to a specific country. Thus in each country resources may be devoted to adapting a work even though it has already been adapted in many other countries. The Treaty will enable the creation of global systems which enable efficient use of the limited resources.

What other possible courses of action would facilitate access by blind, visually impaired, and other reading disabled persons?

One alternative proposal that has been suggested is that publishing industry, by which is mean the three or four incumbent multinationals which dominate the global publishing industry enter into some sort of voluntary agreement between them and the representatives of the visually impaired to enable theblind. However recent technological and consequent economic changes put the continued viability of the publishing industry in question, so a voluntary agreement may not be a long or even medium term solution. A voluntary undertaking by incumbent publishers will also not give access to orphan works. Orphan works are copyright works that are inaccessible because permission cannot be obtained because the rights holders cannot be located, and possibly no longer exist.

Minimum exceptions are thus necessary to ensure that visually impaired persons have access in a technology neutral way which operates in all environments, and without requiring the consent of any information intermediaries whether search engines, internet service providers or other intermediaries. Only a treaty which creates legal rights will ensure that visually impaired persons get access to knowledge not matter what happens technologically or economically.

Legal opinions and reviews for other jurisdictions are hosted at a US government site.