[A2k] Marcus Low in GroundUp: Blind sidelined by Department of Trade and Industry

Thiru Balasubramaniam thiru at keionline.org
Thu Oct 3 04:23:52 PDT 2013


Blind sidelined by Department of Trade and Industry

October 2, 2013, - Marcus Low

OPINION: South Africa’s draft intellectual property policy fails to make
any mention of the most progressive copyright treaty in years. Blind and
visually impaired people will pay the price if this is not rectified in the
final policy.

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
The original closing date for submissions have been extended to October

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