Sunday Times 07 June 2020

President Cyril Ramaphosa’s tardiness in enacting the controversial Copyright Amendment Bill has landed him in the Constitutional Court, where he is accused of failing to fulfil his constitutional duties and disadvantaging millions of visually impaired citizens.

Blind SA is asking the highest court in the land to compel Ramaphosa to sign the bill passed by parliament in March last year into law without any further delay.

In the same application, Blind SA also wants the court to force the minister of international relations — within 10 days of the president assenting to the bill —  to ratify the Marrakesh Treaty to facilitate access to published works by visually impaired persons.

The Copyright Amendment Bill, which regulates intellectual property matters, amends the outdated 1978 version of the Copyright Act.

The publishing industry is opposed to the bill, while big technology companies support it, especially its “fair use” clause.

Why should one want to write a book  … if they will not be remunerated for it?

 Blind SA argues in court papers that Ramaphosa’s failure to enact the bill has prevented the translation of reading material, including learning textbooks, into braille and other accessible formats used by the visually impaired.

The organisation has also pointed its guns at section 6(a) of the 1978 Copyright Act, which grants an exclusive right to authors or their assignees in “reproducing the [literary] work in any manner or form”.

The Copyright Amendment Bill introduces an exception to the exclusive right granted in the old act, in favour of the visually impaired.

Blind SA says the effect of this provision is that copyrighted literature may not be transcribed to braille and alternative formats for the print-disabled without the authorisation of the owner.

“The visually impaired and otherwise print-disabled are prejudiced on an ongoing basis by this delay.

“They are constantly excluded from everyday reading, from many aspects of study and from numerous cultural aspects. These exclusions prevent them from exercising their constitutional rights to equality and human dignity and these exclusions continue notwithstanding the bill having been passed by the National Assembly more than a year ago,” the organisation said.

It also contends that Ramaphosa’s “inaction” on the bill has the knock-on effect of delaying ratification of the Marrakesh Treaty.

The trade & industry department last year asked parliament for ratification of the Marrakesh Treaty to be delayed until the bill had been signed into law.

The treaty was adopted by the World Intellectual Property Organisation in 2013. It allows for copyright exceptions to facilitate access to copyrighted reading material by the visually impaired and has been ratified by the UK, India and Tanzania.

But the Copyright Coalition of SA remains opposed to the bill passed by parliament, insisting it would not pass constitutional muster if signed into law. The coalition, which represents authors and other stakeholders in the arts, film, music and recording industries, has previously petitioned Ramaphosa not to sign the bill, asking for further consultation and a socioeconomic impact study.

The coalition’s spokesperson, Collen Dlamini, claimed the economy stood to lose more than R34bn if the bill became law. He said the bill would effectively stop duty-free access to the lucrative US market in terms of American trade preference programmes.

He said the coalition had commissioned a study by PwC which found that the publishing industry would lose 1,250 jobs, with sales dropping by 40%, because everyone would be free to make copies at will.

“Why should one want to write a book or make music if they will not be remunerated for it, or if it’s going to be freely available, or you don’t have a transparent mechanism of calculating what you should be paid if it’s on YouTube?”

Ramaphosa’s spokesperson, Khusela Diko, said the presidency was still studying the court papers brought by Blind SA.

“The president fully appreciates that the bill facilitates access to information and works by people with disabilities.

“In the same vein, the president has also received numerous submissions regarding the constitutionality of the bill,” she said.

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