Blind people are at a distinct disadvantage and face serious challenges when it comes to reading the written word. They need written text to be rendered in Braille or in electronic form to permit a text-to-speech functionality with easy navigation across the text. Unfortunately, such adapted-for-disability-utility versions of written text are in short supply or are not always optimally operational. The international community, and more particularly the World Intellectual Property Organization (WIPO), has embraced this plight of the blind. WIPO has fathered the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (MVT). It was adopted on June 27, 2013 and came into force on September 30, 2016. The MVT is intended to mitigate the effects of the exclusive rights under copyright of authors in relation to their literary works by allowing those works to be reproduced in an adapted-for-disability-utility format without their authority in certain circumstances. South Africa is currently not a party to the MVT.

The objective of making adapted-for-disability-utility versions of written texts freely available for the use of the visually impaired is a worthy cause in principle. There is merit in introducing provisions into our copyright law to facilitate this by means of making an appropriate exception to the ambit of the copyright in literary works. The Department of Trade and Industries (DTI) has attempted to achieve this but has gone about doing so in an inept manner, which has thus far not been successful. The writer will address this question. In doing so, for simplicity, the example of texts converted to Braille will be used but the same considerations apply to all forms of disability-utility versions of written text. References to Braille apply mutatis mutandis to all such other forms. But first it is necessary to outline the lie of the land.

RATIONALE OF COPYRIGHT

Copyright is a body of law which provides creators of written and other works with the power to exercise control over the commercial exploitation of their works. The rationale is to place authors in a position to derive material benefits from the fruits of their labours in creating original works, thus providing them with a means for deriving income and incentivising them to create more and better works for the benefit of all. In practice this is commonly achieved by enabling authors to charge royalties for the commercial exploitation of their works. However, this power of authors has the potential to inhibit the availability of works, which can be contrary to the public good in some circumstances. Legislators have thus found it desirable to weigh up the private rights of authors (bearing in mind the purpose of copyright) against the public interest. The outcome is that copyright legislators make exceptions to the exclusive right of authors in certain defined circumstances in which it is deemed that the public interest outweighs the merits of the right of authors. This system is recognized, approved world-wide, and regulated in various international treaties, the most important of which are the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention), a WIPO instrument, and the Agreement on Trade-Related Aspects of Intellectual Property Right (TRIPS), an instrument of the World Trade Organization (WTO). South Africa is a party to both these international treaties and is bound by them.

Care must be taken in granting exceptions to the authors’ rights that they are not excessively eroded otherwise there is the risk of killing the goose that lays the golden egg.

Both the Berne Convention and TRIPS provide that the exceptions to authors’ exclusive rights which they countenance must be subject to the so-called “three-step test”, namely, (1) they must cover only certain special cases, (2) they must not conflict with the normal exploitation of the work, and (3) they must not unreasonably prejudice the legitimate interests of the rightsholder. The MVT, itself, is in effect an approved exception to authors’ rights and, unsurprisingly, it specifically applies the three-step test in its provisions.

THE COPYRIGHT ACT

The law of copyright in South Africa is regulated by the Copyright Act, 1978. It has been amended substantively nine times since 1978, with the most recent amendment being in 2002. The Act, which was strongly based on the British Copyright Act of 1956, and is in conformity with the Berne Convention (often repeating the Convention’s exact wording) and TRIPS, was state of the art in international terms at the time of its adoption. It is, however, deprecatingly referred to by its detractors as “dating from the Apartheid era” (as though this somehow renders it malevolent). While this may be true of the chronology of the year in which it was enacted, in no way can this Act be considered to have been tainted by the Apartheid policy or practices. It was good, sound copyright law at the time and for decades thereafter. However, like our secondary roads and their potholes, and our intermittent electricity supply, it has suffered from lack of proper maintenance and adequate preservation. It has now become badly outdated, particularly in its ability to deal properly with electronic works and digital communications.

The scope of the exceptions to authors’ exclusive rights has also become too limited in the modern environment. The Act has fallen way behind the laws of peer countries like Australia and Canada. It requires substantial amendment, or perhaps to be replaced in its entirety by a new state of the art Act.

COPYRIGHT AMENDMENT BILL

To its credit, the DTI, which administers the law of copyright, perceived the necessity of updating the Act. A few years ago, it produced a draft amending Act. By virtue of the strong (justified) criticisms it elicited, it was redrafted several times. Despite the DTI’s efforts, the draft Bill remained an abomination. It was poorly drafted and exhibited a lamentable lack of appreciation of the principles of copyright law and of the basic tenets of legal draftsmanship. When the Bill came before the Parliamentary Committee on Trade and Industry for consideration, the committee rightly recognized its poor quality and it decided to redraft the Bill itself.

It is said that a camel is a horse designed by a committee. Alas, the Parliamentary Committee, aiming at a horse, designed a five-legged, clumsy camel. While it was an improvement on the abominable beast designed by the DTI, it was very far from being an acceptable piece of legislation. The draft Bill was passed by Parliament and was sent to President Ramaphosa for signature, whereupon it would become law, in March 2019. Fortunately, President Ramaphosa was alerted to the shortcomings of the Bill and has thus far declined to sign it. In June 2020 he sent the Bill back to Parliament for reconsideration. The future course of the Bill is unclear. Hopefully, Parliament will send it back to the drawing board, whereupon the drafting process ought to start afresh and be undertaken by a small working group of true copyright experts.

FAIR USE DOCTRINE

Amongst the chief shortcomings of the Bill is the introduction of its own adaptation of the American principle of “fair use” to the issue of exceptions to the author’s exclusive rights. The principal criticism of the Bill, and vehement objections to it by many legal scholars and specialist legal practitioners, authors, as well as businesspeople in the copyright industries, relate to this issue.

It is fair to say that some American doings and systems, like the weird and convoluted voting procedure for presidential elections, gun laws, and grid-iron football, are not suitable for export beyond the borders of America due to their odd and alien nature. The “fair use” doctrine is such a phenomenon. It is consonant with legal measures and procedures peculiar to American copyright law and practice that do not find expression in South African copyright law and practice. It is thus not adapted for incorporation into our law on this score alone. It is like taking an indigenous form of vegetation from one territory and introducing it into another environment in which it is alien. In its indigenous environment there are climatic and other natural forces that keep it in check.  However, when it is introduced into its new environment with different climatic and other natural characteristics, it can run amok and become a pest.

It is believed in informed copyright circles that the American colossus, Google, like some imperial dictator, is seeking to create colonial copyright territories in South Africa and other parts of the world by implanting the American “fair use” doctrine in their copyright laws. This subjugation is being done to serve its own interests in the true colonial tradition. South Africa does not belong in this empire.

“Fair use” entails the court being granted a very wide latitude, subject to certain criteria, to determine just about any form of use (or misuse) of a copyright work, on an ad hoc basis, as constituting a permissible and legitimate form of unauthorised use of that work. “Fair use” is what any judge, in his wisdom and discretion, decides in a particular instance should not be the preserve of the copyright owner. It places copyright owners at the whim of individuals who may, or may not, have any schooling in copyright. It has the capacity to undermine the very foundations of copyright by seriously watering down the exclusive rights of copyright owners and emasculating them. It can have the effect of a virus that destroys from within. Perhaps this suits the interests of copyright colonialists and lies behind their invasive designs.

The American “fair use” doctrine provides fertile ground for litigation in view of its vagueness and the uncertainty that it creates (the law is what the judge says it to be). Would-be copyists can take advantage of this situation and indulge themselves secure in the knowledge that copyright litigation is expensive and complicated in South Africa and can barely be afforded by many impecunious authors. This certainly does not serve the public interest in the big picture.

It is doubtful whether the American approach complies with the three-step test and whether America is therefore in compliance with its obligations under the Berne Convention and TRIPS. It should be mentioned that American copyright law with it “fair use” system was in operation for centuries before America joined the Berne Convention, as a late comer, in March 1989. Its copyright law was not inspired by the Berne Convention (dating from 1886), unlike British law-based and European copyright laws, and was home grown, out on a limb from the rest of the world. America may be too important and influential to be labelled as non-conforming to the Berne Convention or to be excluded from membership on the basis that its copyright law is errant in some respects, especially when that membership had been solicited for so many years. Unfortunately, South Africa does not enjoy a similar status and would not be given the same latitude.

THE “FAIR DEALING” PRINCIPLE

 By contrast with the doctrine of “fair use,” our Copyright Act deploys so-called “fair dealing” with a work in creating exceptions in certain carefully circumscribed and special cases set forth in the legislation. These are cases where the legislature considered that works should be available for use outside the constraints of copyright restrictions in the public interest. These exceptions enjoy the considered approval of the lawmakers after canvassing public opinion. The “fair dealing” approach is inspired by the international three-step test and is followed by all countries whose copyright laws have their roots in British law. It has the merit of relative legal certainty with its measures enjoying public approval, as opposed to the somewhat arbitrary judge made ad hoc discretionary determinations which characterize the American “fair use” doctrine.

Not only does the Copyright Amendment Bill contain provisions introducing the alien “fair use” doctrine, but to exacerbate the matter it also seeks to overlay the Copyright Act’s “fair dealing” provisions, as well as further specific exceptions contained in the Bill, with the “fair use” system. This would mean that two very different approaches to limiting copyright owners’ rights would vie with each other in the amended Copyright Act. This would be an infallible recipe for confusion and legal uncertainty. Litigation would undoubtedly proliferate.

EXCEPTION IN FAVOUR OF THE VISUALLY IMPAIRED

While it is bad law, the Copyright Amendment Bill nevertheless has some good points. On the whole its sentiments (with a few notable exceptions, like “fair use”) are reasonably sound. It is largely the formulation and expression that are defective. A salutary aspect of the Bill is the introduction of section 19D, which provides for exceptions to the author’s exclusive rights in favour of persons with disability. The section purports to give effect to the MVT with the clear objective of enabling South Africa to accede to it. It is problematical whether Section 19D in its present guise in fact does justice to the MVT, but for the present purposes it will be postulated that it does so or will be brought fully into line with it for the purposes of the measures which will be suggested (consideration of this question is beyond the scope of the present discussion). Granting this protection in our Copyright Act is a condition precedent for such accession. This is a laudable initiative. Section 19D must be viewed against the background of the tension between “fair use” and “fair dealing”.

In essence, Section 19D (as varied as contemplated above, if necessary) is in the nature of a “fair dealing” provision. Importantly, (so it will be assumed) it meets the three-step test. Subject to it being completely in conformity with the MVT it can pass muster.

The problem is that the introduction of this exception into our law, while being perfectly legitimate, generally accepted, and in keeping with international norms, is being held up and stymied by the unacceptable nature and quality of the Amendment Bill, in particular its devotion to the alien “fair use” doctrine. One can understand the chagrin and frustration of Blind SA, the chief proponents of the exception, at their efforts to introduce it being thwarted in this manner. Through the agency of the public interest organization, Section 27, they have launched litigation in the Pretoria High Court seeking an order compelling the government to read section 19D in the Amendment Bill into the Copyright Act, without amending legislation, on the grounds that without this provision the Copyright Act is unconstitutional. This is an extraordinary and startling proposition, and the outcome of the litigation is uncertain. Furthermore, it is likely to take a considerable period, perhaps a year or more, before finality is reached in this litigation. With respect, it is not necessary for Blind SA to go to these lengths in order to fulfill their aspirations. An acceptable viable solution is at hand but has not been recognized. Stake holders and interested parties in respect of the proposed amendments to the Act (including the DTI, its sycophants and minions who frantically campaign for the introduction of the “fair use” principle, as well as Blind SA) seem to have a blind spot when it comes to understanding the Copyright Act. They are looking without seeing.

SECTION 13 REGULATIONS

The “fair dealing” provisions of the Copyright Act are contained in Section 12. The section specifies those limited instances in which the exclusive rights of authors are circumscribed. This section is now outdated, and it must be expanded to cater for modern requirements, particularly in the electronic and digital areas. A future properly considered amending act should address this question. Importantly, Section 12 is supplemented by Section 13.

Section 13 deals with general exceptions in respect of the reproduction of works. It empowers the Minister of Trade and Industries to make regulations allowing reproductions to be made of works without obtaining permission from the copyright owners in specific cases. These exceptions are required by the Section to not conflict with a normal exploitation of works and not to be unreasonably prejudicial to the legitimate interests of the copyright owners. In other words, the specific exceptions created by the Minister must comply with the three-step test. To date the Minister has made regulations allowing unauthorised reproductions (i.e., has created exceptions to copyright protection) in the case of reproductions by libraries or archives, multiple copying by libraries and archives, reproductions for purposes of education, and reproductions of building plans by local authorities. These are all special clearly-circumscribed cases as contemplated by test (1) of the three-step test and are in the nature of “fair dealings.”

The current provisions of Section 19D of the Amendment Bill (as revised and amended as suggested above) could comfortably be accommodated in regulations made by the Minister in terms of Section 13 of the Copyright Act. Section 19D deals essentially with the reproduction of literary works by converting them to Braille. To the extent that Section 19D deals with manners of use of Braille texts which do not amount to reproduction of works (e.g., supplying or distributing Braille versions to others) no exceptions are required because those other manners of use do not currently fall within the ambit of the copyright in literary works and performing them without authority does not impact on the rights of the copyright owner and is perfectly legitimate under the law. Since compliance with the three-step test is built into the MVT, as long as the regulations stay true to the MVT there can be no doubt that they will comply with the three-step test and will thus be valid and not ultra vires the parameters laid down in Section 13. The terminology used in the regulations ought to be consistent with standard and recognized South African copyright terminology, in contrast to some of the unusual terminology used in Section 19D, in order to achieve consistency and clarity of interpretation.

Regulations could be proclaimed by the Minister of Trade and Industries in a matter of weeks. Accordingly, the way forward will be for him to draft and publish expeditiously regulations in terms of Section 13 conforming with the MVT. The desired exception could be in place very shortly. This will meet the aspirations of Blind SA and make their pending court case unnecessary. It will also qualify South Africa to accede to the MVT. There ought to be no reluctance on the part of the Minister to make such regulations. Having recourse to regulations under Section 13 will also make it possible to create other specific exceptions to copyright restrictions on making reproductions if deemed appropriate, provided they comply with the three-step test. This will necessarily exclude provisions purporting to create “fair use” exceptions since they will not satisfy the three-step test.

It is preferable that the proposed regulations should be viewed as an interim measure, and when, and if, a proper sound, amending act is drafted and passed by Parliament in the future it should contain a section approximating to Section 19D and giving full effect to the MVT. At that stage it may be necessary for the exception to deal with other forms of use of works besides reproduction. Such a section would supersede the regulations and they could be withdrawn, having served their purpose.

CONCLUSION

A lesson to be learned from this is that one should not be prejudiced against the current Copyright Act and condemn it before carefully studying and understanding it. Although now outdated in some respects, it continues to have merit. The timing of its adoption in 1978 and the political dispensation that applied at that time are purely incidental.

Written by Professor Owen Dean for The Chair of Intellectual Property