ConCourt issues directions on copyright cases
The Constitutional Court will, in November, hear two applications relating to copyright in SA and, in particular, the rights of blind and visually impaired people to convert into accessible formats, copyright protected works, reports GroundUp.
The apex court yesterday issued directions setting out tight timeframes for the filing of papers in the two matters.
One is an urgent application by Blind SA, while 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.
In its application, Blind SA claimed that Ramaphosa had 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 press 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.
According to GroundUp, 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.
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.
The Chief Justice has directed that the two applications be consolidated and will be heard on 28 November.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.