Blind SA v Minister of Trade, Industry and Competition and Others ZACC

The Constitutional Court of South Africa, in the matter of Blind SA v Minister of Trade, Industry and Competition,[1] delivered a unanimous judgment by Unterhalter AJ, confirming that specific provisions of the Copyright Act,[2] (‘Copyright Act’) were unconstitutional because they infringed the rights of persons with visual and print disabilities.

Case Identification and Parties

The Applicant was Blind SA, a non-profit organization established to promote the interests of blind people in South Africa. The application sought confirmation of an order of constitutional invalidity granted by the High Court of South Africa, Gauteng Division, Pretoria (Mbongwe J). The First Respondent was the Minister of Trade, Industry and Competition (‘the Minister’), who manages the Copyright Act. The Minister did not oppose the core application for confirmation of invalidity but filed submissions concerning the appropriate remedial action. The remaining respondents (the Minister of International Relations and Cooperation, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, and the President of the Republic of South Africa) were joined but did not participate in the proceedings before the Constitutional Court.

Three parties intervened as amici curiae:

The first is Professor Owen Dean (First Amicus), a leading academic and practitioner in copyright law, who raised arguments against Blind SA’s application, particularly regarding whether the Act was truly unconstitutional. Second, is the Media Monitoring Africa Trust (MMA), a non-profit organization focused on media development. Lastly, is the International Commission of Jurists (ICJ), a non-governmental organization dedicated to human rights.

Background and Legislative Delay

Blind SA contended that the Copyright Act restricted access to works under copyright for persons with print and visual disabilities.[3] The Act required the consent (authorization) of the copyright owner to convert works into suitable accessible formats, creating a severe limitation on access, often termed the “book famine”.

Since 2015, a legislative process had been underway to amend the Copyright Act. The process included the drafting of a Copyright Amendment Bill (CAB),[4] which proposed a new section 19D. Section 19D was intended to create “general exceptions” allowing entities serving persons with disabilities to create accessible format copies without the owner’s authorization. Although Parliament passed the CAB in March 2019, the President referred it back to the National Assembly in June 2020 due to constitutional reservations (in terms of section 79(1) of the Constitution). The CAB was then reclassified as a section 76 Bill, involving additional parliamentary and provincial processes, leading to significant delay. Blind SA approached the court, aggrieved by the inordinate delay.

High Court Proceedings

Blind SA sought a declaration that the Copyright Act was unconstitutional because it unjustly limited the rights of persons with visual and print disabilities. The High Court found the existing Act to be restrictive regarding the conversion of works, noting that the requirement for consent led to discriminatory barriers inconsistent with section 9 of the Constitution.[5] The Court also ruled that the delay in adopting the CAB was unreasonable and violated section 36(1) of the Constitution.

The High Court declared the Copyright Act unconstitutional, ordering that the proposed section 19D be immediately “read as if specifically incorporated” into the Act, and suspended the declaration of unconstitutionality for 24 months to allow Parliament to remedy the defect. The amici curiae supported Blind SA, with the International Court of Justice (ICJ) arguing that the Copyright Act must align with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired (‘Marrakesh Treaty’),[6] to cure its inconsistency with the Constitution.

Submissions Before the Constitutional Court

Blind SA argued that the inability to freely convert copyrighted material limited multiple constitutional rights, including equality, human dignity, basic and further education, freedom of expression, and participation in cultural life (section 30).[7] They submitted that the requirement for individual authorization constituted unfair discrimination.

A central part of Blind SA’s argument focused on section 13 of the Copyright Act, which allows the Minister to regulate reproductions of copyrighted works. Blind SA contended that this power was too narrow because making an accessible format copy requires not only reproduction but also adaptation, distribution, and transmission. They submitted that an exception covering only reproduction would fail to comply with international obligations, such as Article 4(1)(a) of the Marrakesh Treaty,[8] which requires exceptions relating to the rights of reproduction, distribution, and making available to the public. As a remedy, Blind SA requested the Court to exercise its broad remedial powers under section 172(1)(b) of the Constitution and read in the proposed section 19D immediately.

The Minister supported confirming the declaration of invalidity but opposed the final reading-in of section 19D without suspension. The Minister argued for a suspension coupled with an interim reading-in, which would be less intrusive into the domain of Parliament.[9] The Minister also rejected Professor Dean’s suggestion to use section 13 for regulation, arguing that section 13 was too restrictive and that section 19D encompassed a broader government policy to align the Act with various international treaties.

In contrast, Professor Dean argued that the Copyright Act was constitutionally sound because section 13 already empowered the Minister to promulgate regulations permitting the reproduction of works into accessible formats. He asserted that format shifting (conversion into braille, for example) constituted only reproduction. Reproduction, in his view, is a mechanical process that transcribes the work without changing its “ideological content”. By contrast, adaptation involves creative transformation, such as translation. Since format shifting is reproduction, the power granted under section 13 is sufficient. Furthermore, Professor Dean highlighted that Article 4(1)(a) of the Marrakesh Treaty specifically requires an exception to the right of reproduction, confirming his position that adaptation is not required.

Professor Dean also raised strong objections against the High Court’s reading-in of section 19D. He argued that it was controversial, incomplete, lacked crucial definitions and risked violating the separation of powers by forcing the Court to legislate these definitions. He also cautioned that a blanket access provision might fail the strict “three-step test” required by international agreements such as the TRIPS Agreement (Article 13),[10] and the Berne Convention (Article 9(2)).[11]

Constitutional Court Analysis

The Court confirmed its duty to conduct an independent evaluation of the constitutional status of the Copyright Act provisions. The Court accepted the undisputed evidence that the requirement for authorization created a massive scarcity of accessible literary works. This resulting disparity constituted unfair discrimination on the grounds of disability. The Court found that the failure to make special provisions exposed persons with disabilities to damaging scarcity, violating the principle that the state must sometimes provide “different or more favorable treatment” to secure non-discriminatory outcomes.

The court further found that the scarcity infringed the rights to human dignity, as access to literary works is essential for advancement and well-being; freedom of expression and participation in cultural life. The lack of accessible textbooks directly infringed the rights to basic and further education. The Minister offered no argument that these limitations could be justified under section 36 of the Constitution.

Furthermore, the court addressed Professor Dean’s argument that section 13, which empowers the Minister to regulate “reproduction,” could cure the constitutional defect. The court examined the complex boundary between reproduction and adaptation. While acknowledging that simple transcription into another format might be reproduction, the court noted that rendering complex literary works, which may include artistic works, graphs, charts, or require audio conversion into accessible formats often necessitates significant changes. The court agreed that accessible formats must permit changes needed to make the work accessible in the alternative format, as implied by the Marrakesh Treaty. Such changes are necessary to ensure the format is feasible and comfortable for beneficiary persons.

The court concluded that restricting the exception solely to reproduction, as allowed by section 13, was insufficient. To cure the constitutional defect effectively, those producing accessible copies must have the freedom to make adaptations where necessary.[12] Therefore, the limited power under section 13 could not save the Copyright Act from invalidity. The rights conferred by sections 6 and 7 (reproduction and adaptation) read with section 23 (infringement) were found to be the source of the constitutional violation.

Remedy and Final Order

Under section 172(1)(a) of the Constitution,[13] the court was required to declare the law invalid to the extent of its inconsistency. The court narrowed the scope of the High Court’s order, confirming that the invalidity applied only to published literary works and the rights of persons with visual and print disabilities.

The court declared that sections 6 and 7, read with section 23 of the Copyright Act,[14] were unconstitutional, invalid, and inconsistent with the rights listed (sections 9(3), 10, 16(1)(b), 29(1), and 30).[15] The definition of “person with a visual and print disability” was specified according to the “beneficiary person” definition in Article 3 of the Marrakesh Treaty,[16] including those who are blind, visually impaired, or physically unable to hold or manipulate a book.

Acknowledging the constitutional duty to respect parliament but also the need for immediate relief due to the extensive delay, the court suspended the declaration of unconstitutionality for a period of 24 months to allow Parliament to remedy the defect. To provide immediate redress during the suspension period, the court ordered a tailored interim remedy, deeming the inclusion of Section 13A (Exceptions applicable to beneficiary persons) into the Copyright Act. This deemed provision was narrowly crafted to address only the specific constitutional defects established by Blind SA, avoiding broader legislative issues such as importation or domestic reciprocity. The Minister of Trade, Industry and Competition was ordered to pay the Applicant’s costs, including the costs of two counsel.

Bibliography

• Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Marrakesh, 15 April 1994, entered into force 1 January 1995.
• Berne Convention for the Protection of Literary and Artistic Works, Paris Act of 24 July 1971, as amended 28 September 1979.
• Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33 (CC).
• Constitution of the Republic of South Africa,
• Copyright Amendment Bill [B13B–2017].
• Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, adopted 27 June 2013, entered into force 30 September 2016.

Footnotes:

[1] Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33, Case CCT 320/21 (CC).

[2] Copyright Act 98 of 1978 (SA).

[3] Blind SA (n 1).

[4] Copyright Amendment Bill [B13B–2017] (SA).

[5] Constitution of the Republic of South Africa, 1996 (SA).

[6] Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, adopted 27 June 2013, entered into force 30 September 2016.

[7] Constitution of the Republic of South Africa, 1996 (SA) ss 9; 20; 16; 29; 30.

[8] Article 4(1)(a) of the Marrakesh Treaty.

[9] Blind SA (n 1).

[10] TRIPS Agreement art 13.

[11] Berne Convention art 9(2).

[12] Blind SA (n 1).

[13] Constitution of the Republic of South Africa, 1996 (SA) s 172(1)(a).

[14] Copyright Act ss 6 and 7.

[15] Constitution of the Republic of South Africa, 1996 (SA) ss 9(3), 10,16(1)(b), 29(1) and 30.

[16] Article 3 of the Marrakesh Treaty.