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

LITERARY WORKS IN SOUTH

AFRICA IN THE LOCAL AND

GLOBAL 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 visually impaired worldwide. The term ‘visually

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

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

those people with some degree of visual impairment, over 90 per cent live

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

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

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

than 60 countries worldwide had limitations and exceptions clauses for the

visually impaired written into their national copyright laws.3 This obviously

fails to account for more recent amendments to some countries’ copyright

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

Act,4 but is nonetheless a good indication 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 studies 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 impaired 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 impaired’, 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 cent of books published for the year for the virtually

impaired were made available in developing, poorer countries.5 The situation

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

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

visual impairments.6 The fact that there are over 800 000 visually impaired

persons in South Africa makes this number all the more shocking and

unacceptable.7 This, in essence, is what has been known as the so-called

‘book famine’. It is within this practical framework that the arguments 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 nature of copyright and its implications for copyright

owners and copyright users. The laws will be those of South Africa, as the

article is focused on the South African legal landscape and 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, in some jurisdictions (including

South Africa), moral rights.9 The focus of this article will be on the former.

The economic rights include the right to reproduce the work and the right to

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

right to authorise such actions occurring 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 make up the bundle of rights owned by the

copyright owner rest on the idea of gaining the permission of the copyright

owner to do so. This can range from being granted a licence in exchange for

royalties being paid to the copyright owner, by assignment, by testamentary

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 http://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.

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

11 Ibid.

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

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