Blind sidelined by Department of Trade and Industry

On 28 June 2013, 51 countries lined up in Marrakesh, Morocco, to sign an historic treaty aimed at making more books available for blind and visually impaired people. South Africa was not one of them.

Three weeks ago, the Department of Trade and Industry (DTI) released a draft intellectual property policy for South Africa. The policy makes no mention of the Marrakesh treaty nor the kind of copyright limitations and exceptions that the treaty envisages.

If South Africa had any intention of domesticating the Marrakesh treaty, this draft policy would have been the place to announce it since it will lay the foundation for law reform in the coming years.

The Marrakesh treaty does two key things. Firstly, it creates copyright exceptions and limitations in relation to blind people. Essentially, this allows for copyrighted works to be reproduced without the consent of the copyright holder, as long as the reproduction is exclusively for use by blind and visually impaired people. Such copyright exceptions are nothing new, and over 40 countries, including the United States, had such exceptions in their national laws even before the treaty was signed.

The second major achievement of the treaty is to make it legal to send books copied in this way across national borders. In other words, as soon as even a small country like Swaziland ratifies the treaty, blind people in the Swaziland will be able to access books from the United States (who are expected to sign the treaty soon).

In short, blind and visually impaired people are being let down by the DTI to an extent that likely infringes upon their constitutional right to access information and not to be discriminated against. This group of people already have a very hard time accessing books and education. If South Africa signed and ratified the treaty it would open the doors to accessible format books from the United States and United Kingdom. This would make a dramatic difference to the lives of blind and visually impaired students.

However, since South Africa has not signed the treaty or implemented copyright exceptions in our national law, blind and visually impaired people only have access to a very small fraction of the books out there. Most books in accessible electronic formats that could be sent to South Africa with the click of a mouse, remain out of reach. Instead, blind students in South Africa struggle with imperfectly scanned books (and reading them using optical character recognition) or begging friends and family to read to them from normal print copies.

The failure to mention the Marrakesh treaty in the draft IP policy is unlikely to have been a mere oversight. The relatively low-level delegation South Africa sent to the Marrakesh conference where the treaty was concluded suggests that this issue simply isn’t a priority for the DTI.

The highest ranked South African in Marrakesh was the Deputy Minister of Women, Children and People with Disabilities (WCPD), Henrietta Bogopane-Zulu. She made a number of powerful interventions during the conference – to my mind at least undoing some of the bad wrap her department has been getting in recent years.

I do not know whether the Department of WCPD has been pushing the DTI to domesticate the Marrakesh treaty. I suspect they have been. I understand the South African National Council for the Blind has previously approached the DTI about the kind of copyright exceptions and limitations envisaged in the treaty.

But to judge by the draft policy, the DTI remains unmoved and indifferent. The copyright section of the draft policy makes absolutely no mention of the Marrakesh treaty. It expresses some caution over signing copyright treaties in general. This is sensible given the pro-industry direction copyright agreements have been taking prior to Marrakesh. South Africa has for example not ratified the WIPO Copyright Treaty (WCT) of 1996. But whereas there might be good reasons to debate the merits of ratifying the WCT, the same can surely not be said for the Marrakesh treaty.

Even before the Marrakesh treaty was concluded, a convincing argument could be made that the lack of copyright exceptions and limitations in our national law infringes on the constitutionally enshrined rights of blind and visually impaired people. With the Marrakesh treaty now providing a clear and unambiguous green light in international law, there can be no more excuses for limiting blind and visually impaired people’s access to books and education.

The Draft Intellectual Property Policy can be found here. The original closing date for submissions have been extended to October 17th.