On 13 December 2024, the Constitutional Court handed down an interim order in the matter Blind SA v President of the Republic of South Africa. The Court temporarily amends the Copyright Act 98 of 1978 to include an exception to copyright for persons who are blind and visually impaired, pending the Court’s final decision.
Blind SA, represented by SECTION27, launched an urgent application in the Constitutional Court in October this year after the President failed to sign the Copyright Amendment Bill (“CAB”) by 21 September 2024. This date marked the expiry of a court-ordered deadline imposed on the President, two years ago by the Constitutional Court in the matter Blind SA v Minister of Trade Industry and Competition.
In this initial case, Blind SA, represented by SECTION27, challenged certain provisions of the Copyright Act that criminalised anyone who converted reading materials into accessible formats, like braille or large print, without the consent of the copyright holder. The court found in Blind SA’s favour and declared the Copyright Act unconstitutional and invalid to the extent that it discriminated against persons who are blind and visually impaired and prevented their access to reading materials.
In terms of relief, the court suspended its declaration of invalidity and ordered Parliament to fix the Copyright Act within 24 months. The court also crafted its own interim exception to copyright for persons who are blind or visually impaired, “section 13A”, which was read into the Copyright Act over this period while waiting for Parliament to effect the changes. Over the last two years, Parliament made the necessary amendments through the CAB, and included an exception to copyright that would not only benefit persons who are blind or visually impaired, but all persons with disabilities. On 29 February this year, both Houses of Parliament approved the CAB, and it was sent to the President for signature.
Unfortunately, by 21 September 2024, the CAB remained unsigned, causing the declaration of invalidity to take effect and the court-crafted section 13A exception to lapse. This meant that although the Copyright Act no longer criminalised the conversion of reading materials into accessible formats without the consent of the copyright holder, the law no longer provided guidance on how this should take place lawfully, causing much uncertainty.
In addition, without an express exception to copyright for persons who are blind or visually impaired, South Africa cannot ratify the Marrakesh Treaty. This treaty facilitates the cross- border exchange of accessibly formatted materials and its ratification would give persons who are blind or visually impaired in South Africa access to hundreds of thousands of titles in accessible formats. Blind SA therefore instituted proceedings against the President in October to compel him to sign the CAB, alternatively to resuscitate the section 13A exception. Shortly after the case was launched, the President referred the CAB to the Constitutional Court and Blind SA limited its relief to the resuscitation of the court-crafted 13A exception.
Last week, the court handed down an interim order granting the reading-in of its previous section 13A exception into the Copyright Act. As before, section 13A contains an express exception to copyright for persons who are blind and visually impaired, defines important terms, explains who may make, obtain and supply accessible format copies and indicates under what circumstances this must occur in order to benefit from the exception. The court’s interim order therefore provides much needed legal certainty while we wait for its final decision. The interim order ensures that the rights of persons who are blind and visually impaired, including their right to equality, dignity, basic education, and the right to participate in the cultural life of one’s choice, are realised through greater access to reading materials in formats they can read.
The court has not yet indicated when a final judgment will be handed down. However, the hearings related to the President’s referral of the CAB to the Constitutional Court will be heard on 19 and 20 February 2025.
For any enquiries, please contact:
SECTION27: Pearl Nicodemus | nicodemus@section27.org.za | 082 298 2636
Blind SA: Lerato Jiyane | pr.intern@blindsa.org.za | +27 68 039 4857
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