Ending Book Famine and Vaccine Inequality: What a South African Court’s Decision on Copyright Law has to do with COVID-19 Vaccine Access

[Timothy Fish Hodgson is a legal adviser for the International Commission of Jurists (ICJ), based in Johannesburg. Onen Cylus is a junior legal researcher for the International Commission of Jurists (ICJ), based in Kampala, Uganda.]

The scramble for access to COVID-19 vaccines has brought public attention to the significant impact that intellectual property (IP) protections can have on the right to health. Calls for a waiver on IP rights by the World Trade Organization continue to receive global attention and support. This “TRIPS waiver” would allow for countries to produce, distribute and acquire vaccines on their own, freed from the effective control of big IP rights holding pharmaceutical companies.  This is important, because as the research by the International Commission of Jurists (ICJ) in Southern Africa, Nepal, Palestine/Israel, Thailand and Colombia has shown, COVID-19 vaccine access remains highly unequal. Much of the world remains unvaccinated while a small number of countries are now in a position to give “booster shots” despite the WHO’s condemnation. 

Important as universal vaccine access is it is crucial to understand the broader impacts of a variety of IP protections currently have on access to basic human rights of people around the world, including marginalized persons such as persons with disabilities.

Alive to this, States drafting the Convention on the Rights of Persons with Disabilities (CRPD)  included an obligation on States Parties to take appropriate steps “to ensure that laws protecting intellectual property rights do not constitute an unreasonable or discriminatory barrier to access by persons with disabilities to cultural materials” (Article 30(3)).

This provision, though of broader application, is directly relevant to challenges faced by persons with disabilities throughout the world in accessing reading materials. Without equal access to reading material, persons with disabilities simply cannot fully enjoy a range of rights on an equal basis with others, including the rights to education, participation in cultural life and freedom of expression.

The phrase “book famine” is a term used even by the World Intellectual Property Organization itself, to describe the devastating dearth of reading materials available to persons with disabilities throughout the world. In the Global South, as few as one percent of all books is estimated to be available in “accessible format” copies that can be used by people with disabilities across the spectrum. The major impediment to access is clearly IP protections in the form of copyright laws on domestic and international levels.

Copyright laws provide protection to the IP of an author of a work, thus prohibiting the copying, alteration or transformation of the work without the author’s permission, and thereby aiming to protect the legitimate interests and livelihoods of authors. However, in the absence of exceptions pertaining to accessible formats, persons with disabilities are essentially left with three options: 1) go without reading materials; 2) individually approach authors one by one for permission to modify books and modify at their own personal cost; 3) break the law.

The ICJ has recently been involved in advocacy and litigation to end “book famine” in South Africa by ensuring the appropriate amendment of South African copyright law to allow for exceptions which would dramatically improve access to reading materials for persons with disabilities. These efforts highlight the crucial importance of securing compliance of IP laws with international human rights standards, while, we argue, also telling us something about the fight for equitable COVID-19 vaccine access.

South Africa: Apartheid Era Legislation Continues to Apply

South Africa’s copyright regime is based on the Copyright Act, legislation enacted in 1978 during the height of apartheid. This archaic legislation is an affront to human rights and the rule of law. The Act fails to incorporate exceptions to copyright law which would allow for the lawful adaptation of reading materials for the benefit of accessibility to persons with disabilities. It also suffers from other defects which compromise the right to health as the Health Justice Initiative has argued. 

Making matters worse, a full decade ago the government established a Copyright Review Commission which issued a report recommending that the Act should be reviewed and amended to include exceptions and limitations for the benefit of persons with disabilities.   Ten years later, despite the publication of a draft Copyright Amendment Bill which, if made into law, would achieve just this, Parliament has yet to enact these provisions into law. In the interim, South Africa participated in the elaboration of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, a treaty specifically dedicated to obliging States Parties to provide for exceptions to copyright laws to resolve discrimination against persons with disabilities. The Treaty presently has 81 States Parties.

Nonetheless, despite participating in the of the Marrakesh Treaty and at the closing of the Conference negotiations describing the agreed treaty as “a means to end the book famine that has long plagued people with visual impairment and print disabilities”, South Africa has as yet to accede to the Treaty, puzzlingly saying it will only do so once it has finished the drawn out process of amending the Copyright Act.

Fed up with being asked to wait seemingly endlessly for the simple justice of equal access to reading materials, Blind SA, an organization advocating for the rights of visually impaired persons in South Africa, approached the High Court seeking an order declaring the Act unconstitutional and a “reading in” of the provisions of the draft Copyright Amendment Bill.

The Relevance of International Human Rights Law

South African Courts in post-apartheid South Africa have, in accordance with a constitutional injunction , frequently undertaken to interpret the States’ constitutional and statutory lawwith reference to international law and standards. The ICJ therefore approached the High Court seeking admission as an amicus curiae to assist the court by making arguments relating to the inconsistency of the Copyright Act with international law and standards, in particular those stemming from the CRPD Convention and the International Covenant on Economic, Social and Cultural Rights (ICESCR) which both protect the rights to education and participation in cultural life.

In addition we argued that despite having not acceded to the Marrakesh Treaty, South Africa’s constitutional law should nevertheless be interpreted in light of its provisions because the Constitutional Court has held that even “non-binding” sources of international law can and should be considered in giving meaning to the States’ obligation to take reasonable and effective measures to realize human rights. This is particularly so in the present context given that the Marrakesh Treaty largely reinforces existing obligations of South Africa in terms of the CRPD and ICESCR, and because of South Africa’s public support for the Treaty.

The High Court Acknowledges the Importance of International Law

On 21 September, Judge Mbongwe sat to hear arguments on the constitutional challenge to the Copyright Act. Lawyers representing Blind SA and three amicus curiae presented arguments to the court alleging the inconsistency of the Act with the South African Constitution and international law, with all parties making submissions on some aspects of South Africa’s international law obligations.

Somewhat unusually, the matter was heard unopposed in the High Court, because the government entered a notice of intention to abide with the Court’s decision. Though it briefed a lawyer to attend the hearing, the government agreed to consent to the declaration of invalidity provided that the Court’s order effectively amounted to a “reading in” of the provisions of the Copyright Amendment Bill into the Act.

After hearing arguments, Judge Mbongwe expressed disappointment at the inordinate delays in the process of amending the Copyright Act. He granted the specific order sought by Blind SA, declaring the Act unconstitutional because it infringes “a variety of rights” of persons with disabilities. A reading in of the provisions of the Bill, Judge Mbongwe said, would also ensure that the Copyright Act would be rendered “in line and harmonious with international law”.

Though the judge has yet to issue full written reasons for this decision, and despite the fact that this order will have to be confirmed by the Constitutional Court of South Africa in due course, it has been celebrated as a major and long-awaited victory by persons with disabilities in South Africa. Given the reference made in Judge Mbongwe’s order to international law, it is hoped that the judgment will also act as a powerful reminder to the government of the need for it to fully consider international human rights standards in the enactment and revision of legislation.

Broader Importance of the Case: From Reading Materials to COVID-19 Vaccines

The ICJ will seek permission from the Constitutional Court to intervene in confirmation proceedings. It is crucial that the apex Court of South Africa fully considers and applies international human rights law standards in its judgment, as it appears the High Court has and will.

In the meantime, the long and winding amendment process of the Copyright Act remains underway. It should be a matter of substantial embarrassment for the government that this process has taken so long, despite its clear admission in the High Court that its continued failure to ensure the revision of the Act violated the constitutional rights to reading material of persons with disabilities.

The Parliamentary process has itself been stalled in part due to raging debates about various aspects of the long-anticipated amendment of the Copyright Act. These include arguments from many with commercial interests at stake who, it seems, would have Parliament apply international copyright law standards in a vacuum, absent consideration and application of international human rights standards.

As ICJ argued in front of Judge Mbongwe and has also separately told Parliament, this is an incorrect approach to international law in conflict with Article 31(3)(c) of the Vienna Convention on the Law of Treaties (VCLT). The logic of the VLCT is that international law should effective be interpreted as a single coherent system of interlocking laws, which necessitates the consideration of international human rights law standards and international copyright law standards together, simultaneously.

This brings us back to where we started. At the heart of the States’ failures to ensure equitable access to COVID-19 vaccines is the claims of wealthier States and pharmaceutical companies that IP rights are sacrosanct and should be determined independently of the consideration of human rights like the right to health. If we do not do so, they tell us, incentives for vaccine production will be reduced and COVID-19 vaccine access compromised.

As Judge Mbongwe’s decision shows, courts can and should see through such false and self-serving dichotomies. International human rights law and international standards on intellectual property (such as the TRIPS agreement) are not hermetically separable. On the contrary, they are, and should be understood to be, fundamentally interlinked. As the CESCR Committee has noted in relation to COVID-19 vaccines:

“[I]ntellectual property rights are not a human right, but a social product, having a social function. Consequently, States parties have a duty to prevent intellectual property and patent legal regimes from undermining the enjoyment of economic, social and cultural rights”

Books and vaccines are both social products that have social functions. Where IP protections impede access to human rights, they can and should be limited by governments and, if needs be, by courts.