A Critical Examination of Copyright Limitations and Exceptions for the Visually Impaired Pertaining to Literary Works in South Africa in the Local and Global Context

• Citation: (2014) IPLJ 42
• Published date: 16 August 2019
• Date: 16 August 2019
• Author: Jade Kouletakis
• Pages: 42-65

A CRITICAL EXAMINATION OF

COPYRIGHT LIMITATIONS AND

EXCEPTIONS FOR THE VISUALLY

IMPAIRED PERTAINING TO

LITER ARY WORKS I N SOUTH

AFRICA IN THE LOCAL AND

GLOBA L CONTEXT

  

Teaching and Research Assi stant, Faculty of Law, University of Cap e Town†

 

1.1 Contextualising the issue

According to the World Health Organization ( WHO), in 2012 there were 285

million people that were visua lly impaired worldwide. The term ‘vi sually

impaired’ encompasses bot h the 39 million indiv iduals who suffer f rom legal

blindness as well as the 246 ind ividuals who suffer from low vision.1 Of

those people with some degree of visua l impairment, over 90 per ce nt live

in developing, poorer countries. Ab out 19 million of those affected by visual

       2 A su rvey conducted by

the World Intellectual Proper ty Organisation (WI PO) in 2006 found that fewer

than 60 countr ies worldwide had limitations and except ions clauses for the

visually impaire d written into t heir national copyright laws.3 T his obviously

fails to account for more recent ame ndments to some countr ies’ copyright

laws, such as India’s recent adoption of the Indian Copyright (Amend ment)

Act,4 but is nonetheless a good indicat ion of the lack of initiative taken by

countries to deal w ith the existing book famine when left to t heir own devices.

According to recent stud ies done by the World Blind Union (WBU) in 2012,

only 7 per cent of books published were made available in a for mat accessible

to those who are visually i mpaired in developed (or rather, richer) countries,

* BA LLB (UCT) LLM Intel lectual Proper ty Law (UCT).

   

1 World Health Organis ation ‘Visual impairm ent and blindness’, available at http://www.who.int/

mediacentre/factsheets/fs282/en/ (viewed on 1 Janu ary 2014).

2 Ibid.

3 World Intellectu al Property Orga nisation ‘Limitations a nd exceptions – access to bo oks for the

visually im paired’, available at http://www.wipo.int/pressroom/en/briefs/limitations.html#note

(viewed on 21 January 2014).

4 Act 27 of 2012.

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whilst less than 1 per ce nt of books published for the year for the virt ually

impaired were made available in developing, poore r countries.5 The sit uation

is even worse in South Africa , where only 0.5 per cent of books ever published

have been published in or converted to a n accessible format for people with

visual impair ments.6 The fact that there a re over 800 000 visually i mpaired

persons in South Af rica makes this numbe r all the more shocking and

unacce ptable.7 This, in essence, is what ha s been known as the so- called

‘book famine’. It is within this practical f ramework that the argu ments and

suggestions expressed in t his article must be situated.

Having established a pract ical background upon which to situate t his article,

              

an explanation of the natur e of copyright and its implications for copyr ight

owners and copyrig ht users. The laws will be those of South Af rica, as the

article is focused on the South A frican legal landscape a nd its implications

and duties pert aining to the visually impaired.

1.2 The visually impaired and current copy right law

Copyright is a right given to a n author or creator of an original work in ter ms of

the Copyright Act 98 of 1978.8 It bestows upon the author a ‘bundle of rights’,

which is made up of both economic and, i n some jurisdictions (including

South Africa), moral rights.9 The focus of th is article will be on the forme r.

The economic rights in clude the right to reproduce the work and the r ight to

adapt and alter the work.10 It is also the copyr ight owner who has the sole

right to authorise such act ions occurri ng in regard to his work.11 The ways in

which someone who is not the copyright owner may go about pe rforming any

one of these economic rights that m ake up the bundle of rights owned by the

copyright owner rest on t he idea of gaining the perm ission of the copyright

owner to do so. This can ra nge from being granted a l icence in exchange for

royalties being paid to the copyr ight owner, by assignment, by testament ary

disposition or by operation of the law.12 Save for the last two, there would be



or assigning of the right, a nd, other than by operation of the law, he is in no way

obliged to transfer any of his right s within his bundle. In short, save for where

5 World Blind Union ‘WIPO negoti ations treaty for blind people’, available at h ttp://wbuap.org/

index/archives/516 (viewed on 06 Decemb er 2014).

6 M K Nelson ‘The rich t urn a blind eye to po or readers’, available at http://mg.co.za/article/2013-

03-28-00-the-rich-turn-a-blind-eye-to-poor-readers (viewed on 29 March 2014); South African

National Counc il for the Blind ‘Visually impair ed persons have the right to rea d’, available at

http://www.sancb.org.za/article/visually-impaired-persons-have-right-read (viewed on 03 Octo-

ber 2014).

7 Ibid.

8 For a general over view of the Act, see AJC Copel ing Copyright and th e Act of 1978 (1978).

9 T Pistor ius ‘Copyright law’ in A v an der Merwe (ed) Law of inte llectual propert y in South Afric a

(2011) 143–255; AJC Copeling (n8) 26–33.

10 Copyright Act s 6 p ertaining t o literary works on ly.

11 Ibid.

12 Copyright Act s 22; AJC Co peling (n8) 78–84.

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