Showdown over copyright bill at constitutional court

The constitutional court will in November hear two applications relating to copyright in South Africa and, in particular, the rights of blind and visually impaired people to convert copyright-protected works into accessible formats.

The apex court issued directions on Wednesday, setting out tight timeframes for the filing of papers in the two matters.

One is an urgent application by Blind SA. The other is a direct referral by President Cyril Ramaphosa of the Copyright Amendment Bill in which he raises concerns about possible constitutional contraventions in the draft legislation.

The chief justice has directed that the two applications be consolidated and will be heard on 28 November

In its application, Blind SA claimed that Ramaphosa shirked his constitutional obligations by not signing the bill, which would give access to blind and visually impaired people, without consent, to protected material. As one of its orders, it wanted the court to direct the president to sign the bill.

However, three weeks after the application was served on the presidency, his office issued a statement that the bill had been referred to the constitutional court.

In a further affidavit, Zeenat Sujee, attorney at Section27, which is representing Blind SA, said the blind and visually impaired provisions in the bill do not form part of the president’s referral. “And yet their coming into force is held hostage by the referral process,” Sujee said.

She said it was no longer open for Blind SA to pursue an order directing the president to sign the bill within 10 days of the court’s order and that had been abandoned.

‘Acted unlawfully’

It could also not pursue a declarator, on an urgent basis, that he had shirked his constitutional duties “although Blind SA remains concerned about the president’s conduct and is still of the view that he acted unlawfully”.

Sujee said Blind SA would persist with its application for an order which would effectively resuscitate a previous order of a “reading in” of the existing Copyright Act, which created an exception for blind people to convert, without consent, books into formats they can read, such as braille or large print.

This “reading in” would remain in place as long as it takes for the legislation to be enacted which would cure the defect the constitutional court identified in the Copyright Act.

Read: Mickey Mouse, and South Africa’s battle over copyright

It has been two years since the apex court ruled that sections of the act were unconstitutional and trampled on the rights of blind people.

It suspended the declaration of invalidity for two years to give parliament time to remedy the defects through the introduction of the bill and ordered the “reading in” in the interim. But that has now lapsed, and the protections given to blind and visually impaired people have therefore fallen away.

Surjee said their clients needed urgent relief, because even after the court ruled on the constitutionality or otherwise of the bill, it could be referred back to the national assembly in a process which could take as long as four years.

“Whatever happens in the referral proceedings, this much is clear: without obtaining the substantive relief sought in this application, and for as long as the [the bill] does not become law, persons with visual and print disabilities will continue to be denied their fundamental rights,” she said.

She said this would mean that the apex court’s decision in 2022 would be “little more than a pyrrhic victory” and this could not be justified.

‘Failed to do anything’

“Put simply, we are here because those who should have ensured that this court’s order was properly implemented, or at least taken appropriate steps to vary, supplement or extend the order timeously, failed to do anything.”

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