In Blind SA v Minister of Trade, the Constitutional Court declared sections of the Copyright Act unconstitutional. People with visual and print disabilities can now access published works in accessible formats like braille, audio and DAISY (Digital Accessible Information System). The court also gave Parliament 24 months to fix the sections.

Who should care about this judgment and why?

  • Creators, because copyright allows them exclusive ownership of their original work, such as books, software, films and art.
  • People who are enrolled at learning institutions. The Bill will promote access to and sharing of teaching and learning materials for in-person, blended and online learning.
  • People who are print and visually impaired. Currently, countries with fair use can use and reuse South African publications, yet South Africans cannot use or reuse their works. The current law is too restrictive and does not address the digital environment.

What could you do about it?

  • You can dive into the details of this judgment by downloading the full text.
  • Keep up to date with our judgment summaries.
  • Address specific intellectual property concerns by contacting us, and having us draft a practical opinion dealing with your specific issue.
  • Access other relevant judgments by joining a Michalsons programme.

Our insights on the judgment

Access to information is an essential right in a democracy like South Africa. The same is true for the right to equality. Taking measures like identifying and eliminating barriers to accessibility upholds and promotes both those rights. South Africa has been a signatory of the Marrakesh Treaty since 2013, and Blind SA sought to align sections of the Copyright Act with the treaty and recognise the challenges faced by marginalised people. This is especially important in our country and continent’s context because the treaty considers the specific needs of developing countries.

Digest

Facts

At the heart of this litigation was Blind SA. The organisation advocates for the rights and equality of the blind throughout South Africa. It first approached the High Court in the interests of its members and of the general public, and according to section 38 of the Constitution.

Blind SA said that sections of the Copyright Act marginalised or limited the rights of people with visual and print disabilities from access to information. The protection of intellectual property rights was also an important part of this matter. Blind SA called the human rights infringements absurd, and said this has no place in a constitutional democracy. Those whose rights are infringed should not have to wait for Parliament because this is urgent.

In December 2021, the High Court conceded, and declared sections of the Copyright Act unconstitutional. This was subject to confirmation by the Constitutional Court. The latter Court adopted a broad definition of disabled persons in this context. A person with a visual and print disability means a person who:

  1. is blind;
  2. has a visual impairment or a perceptual or reading disability. It also cannot be substantially improved to be equivalent to that of a person who has no impairment; or
  3. is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would normally be acceptable for reading, regardless of any other disabilities.

The Constitutional Court declared that sections of the Copyright Act are inconsistent with the rights of persons with visual and print disabilities set out in the Constitution. These are the rights to equality, human dignity, freedom of expression, education, language and culture. The provisions limit access to literary and artistic works in accessible format copies.

The future of copyright law in South Africa

Hopefully, South Africa will see some overdue reform in its copyright laws. This fresh start in the law-making process recognises the rights of visually impaired persons. It creates the opportunity for South Africa’s copyright law to meet the requirements of the fast-developing digital world and protect our creators’ works.

Order

The Constitutional Court confirmed the order of the High Court declaring the Copyright Act inconsistent with the Constitution.

Details of Blind SA v Minister of Trade

  • Universal citation: [2022] ZACC 33
  • Case number: CCT 320/21
  • Full name: Blind SA V Minister of Trade, Industry and Competition, Minister of International Relations And Cooperation, Speaker of The National Assembly, Chairperson of The National Council of Provinces President of The Republic of South Africa, Owen Dean (Amicus Curiae), Media Monitoring Africa Trust (Amicus Curiae), And International Commission of Jurists (Amicus Curiae).

Please note: The summary of this judgment is not intended for a general audience. It is specifically drafted for the members of the Michalsons Programmes.