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.
