23 September 2022

Constitutional Court Looking Out For The Blind

Barnard Inc.


Barnard Inc is a full-service commercial law firm, with services covering corporate and compliance, intellectual property, construction, mining and engineering, property, fiduciary services commercial litigation, M&A, restructuring, insurance, and family law. Our attorneys advise listed and private companies, individuals, and local and foreign organisations across South Africa, Africa and internationally.
Imagine not being able or, at least, having the opportunity to read Don Quixote or Macbeth due to a disability. This is felt hardest by those with visual and print impairments.
South Africa Intellectual Property
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Imagine not being able or, at least, having the opportunity to read Don Quixote or Macbeth due to a disability. This is felt hardest by those with visual and print impairments. Shockingly, the majority of published books are not published in an accessible form for those with visual and print impairments.

Central to this problem is the fact that the current Copyright Act 78 of 1978 (Act) prohibits the reproduction of literary and artistic works into an accessible form without authorisation from the copyright owner to do so.

Thankfully, in the recent Constitutional Court (ConCourt) matter between Blind SA vs Minister of Trade, Industry & Competition & Others, the ConCourt's eyes were opened.

In short, the Act was declared unconstitutional to the extent that it: – limits/prevents those with visual and print disabilities from accessing copyright works that are otherwise accessible to those without such disabilities, and fails to include provisions that cater to and ensure that those with visual and print impairments are able to access copyrighted works.

Accordingly, the ConCourt upheld the High Court's finding that the required authorisation from a copyright owner to convert copyrighted works into an accessible form is discriminatory and inconsistent with section 9 of the Constitution as it amounts to unfair discrimination against those with visual and print disabilities.

Blind SA, the applicant, submitted that copyright owners have almost exclusive control over the reproduction, publication, performance, broadcast, transmission and adaptation of their copyrighted works. If neither the owner nor the Act sanctioned the aforementioned acts, any use of such work constitutes a copyright infringement, as set out in section 23 of the Act.

Obtaining authorisation is often an insurmountable barrier for those with visual and print impairments (for instance: every owner would have to be approached, individually to grant authorisation), and the only viable alternative would be to sanction the reproduction, adaptation of copyrighted works, to a form accessible to those with visual and print disabilities, by means of a legislative exemption.

Blind SA, further submitted, and rightly so, that section 13 read with section 39(a) of the Act, only enables the Minister to pass regulations for exceptions related to the reproducing of copyrighted works and, accordingly, the Act fails to provide a statutory basis for affording print-disabled persons access to copies of copyrighted works.

By impeding access to copyrighted works, the Act unfairly discriminates against the Constitutionally enshrined rights to equality, human dignity, basic and further education, freedom of expression, and participation in the cultural life of one's choice. By virtue of being a law of general application, the Act is not justifiable as contemplated by section 36(1) of the Constitution.

Resultantly, the ConCourt exercised its broad remedial powers, in terms of section 172(1)(b) of the Constitution, to read into the Act, with immediate effect.

The ConCourt ordered that for the 24-month period in which sections 6 and 7 read with section 23 of the Act are declared inconsistent with the Constitution, section 13A, as set out in the judgement, is read in, which incorporates the exemptions to allow the necessary reproduction and adaptations required to make the works accessible to visual and print disabled persons.

Hopefully, Parliament addresses the situation promptly so that the much-needed temporary relief remains in force, so that people from all walks of life may get to loathe the dreadful Lady Macbeth.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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