Constitutional Court finds sections of the Copyright Act unconstitutional for unfairly discriminating against those with visual and print disabilities

In a unanimous decision handed down on 21 September 2022 in Blind SA v Minister of Trade, Industry and Competition and Others, the Constitutional Court confirmed a decision of the High Court of South Africa, Gauteng Division, declaring certain sections of the of the Copyright Act 98 of 1978 unconstitutional insofar as they limit the access of persons with visual and print disabilities to published literary and artistic works in accessible format copies.

The applicant in the matter was Blind SA, a non-profit organisation that promotes the interests of blind people in South Africa. The primary respondent was the Minister of Trade, Industry and Competition, who is responsible for the administration of the Copyright Act. The Minister did not oppose the application but did file written submissions.

The contested provisions of the Copyright Act require anyone who wishes to make a reproduction or adaption of a copyright work, including a conversion into a format suitable for the use of persons with print and visual disabilities (such as braille), to obtain consent from the copyright owner. Because of this, certain literary works may not be available in a format suitable for persons with visual disabilities, leading to what Blind SA refers to as a “Book Famine”.

There is currently a legislative process underway to amend the Copyright Act, with proposals which would allow for the conversion of copyright works into accessible format copies without infringing the copyright. However, the process has been ongoing since 2015. Distressed by the delay, Blind SA approached the courts for an immediate order declaring the relevant sections of the Copyright Act invalid.

Blind SA submitted that the Copyright Act needed to be aligned with the Constitution and acceptable international standards, such as the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled.

The Court agreed with the applicant’s submission that because of the protection that the Copyright Act affords owners of copyright, persons with disabilities suffer a severe limitation in their access to literature that persons without disabilities do not encounter. This was held to amount to discrimination on the grounds of disability, an infringement of rights that is prohibited by section 9(3) of the Constitution.

The Constitutional Court has ordered Parliament to remedy the constitutional invalidity within 24 months. As an interim measure, to ensure blind persons have access to literature without further delay, the Court has read-in an exception into the Act which will allow books to be converted into accessible formats for visually impaired persons without requiring the authorisation of the copyright holder.

The Act (as read-in) now provides that certain “permitted entities” (including government institutions or non-profit organisations that provide education, instructional training, adaptive reading or information access to persons on a non-profit basis) may, without the authorisation of the copyright owner, make, obtain or supply accessible format copies of copyright works, provided certain conditions are met, including:

• the permitted entity must have lawful access to a copy of the copyright work;
• the conversion of the copyright work copy may not introduce changes other than those needed to make the work accessible to a person with a disability;
• the accessible format copies are supplied exclusively to be used by “beneficiary persons” (persons with a visual impairment or a perceptual or reading disability); and
• the activity must be undertaken on a non-profit basis.

The amendments also allow a beneficiary person, or someone acting on their behalf, to make an accessible format copy of a work for their personal use where the beneficiary person has lawful access to the work.

Blind SA celebrates the decision of the Constitutional Court, as a “victory for communities of disabled persons and a vindication of many of the human rights that are central to our Constitution”, and praises the Court for giving blind persons access to thousands of books with immediate effect.

However, various amici curiae who joined in proceedings, including Professor Owen Dean, a leading academic in the field, raised several issues as to whether Blind SA’s application was sound. Professor Dean submitted that the Copyright Act is not unconstitutional because section 13 permits the Minister to promulgate regulations which would allow for the reproduction of works under copyright in the manner contemplated by Blind SA. As such, Professor Dean submitted that the reading-in of provisions into the Act is inappropriate. Blind SA and the Court however disagreed with him, leading to the order as made.

We believe that this is a good judgement and a huge step forward for people with visual and print disabilities in South Africa. We hope that the amendment of the Copyright Act will now move forward in a speedy and more logical manner.