Many ways to skin a cat: BlindSA obtains a court declaration on the unconstitutionality of the South African Copyright Act

As IPKat readers may know, the legislative process to amend South Africa's current Copyright Act has been a long continuing one with BlindSA amongst others, at its forefront. Indeed as this Kat has reported on this blog (here), the process of addressing the South African President's reservations regarding the Copyright Amendment Bill (CAB) just kicked off in May 2021 (11 months after the President had sent his reservations in a letter to Parliament).

It seems that BlindSA decided to pursue other legal means to achieve its aim of using copyright exceptions to legitimise unlicensed access to copyright-protected works for visually impaired persons. Late in September, a High Court in Gauteng Division ruled on a motion filed by BlindSA in Blind SA v Minister of Trade, Industry and Competition (14996/21) challenging the constitutionality of South Africa's current Copyright Act on the grounds that the statute limits people with visual and print disabilities from accessing copyright-protected materials in formats such as Braille, among others. [Essentially, the application seeks to use judicial means to get South Africa to accede to the Marrakesh Treaty].

Use the umbrella?...

It has been reported that the court agreed with the arguments presented by BlindSA and "was persuaded that the Act affected a variety of rights of visually impaired people and that the order would bring South Africa into harmony with international law on the issue".

Comment

To come into effect, the Constitutional Court will also have to confirm the High Court's declaration of the unconstitutionality of the relevant provision of the current Copyright Act. Section 167(5) of the Constitution stipulates that: The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

Already, Section 19D of the CAB makes provisions that permit the making and distribution of "an accessible format copy for the benefit of a person with a disability" without the authorization of the relevant copyright owner.

The President did not include Section 19D of the CAB in his reservations for Parliament to consider and as reported here, Parliament has restricted its reconsideration of the CAB to strictly those provisions indicated by the President. Consequently, it appears South Africa's accession to the Marrakesh Treaty  through the CAB is being (temporarily) truncated by the debate on other proposed amendments especially, the fair use provision.

In the circumstances, it's a race against time for the BlindSA to secure "victory" for visually-impaired persons through copyright exceptions made for their benefit. Who knows which would happen first: the Constitutional Court's confirmation of the unconstitutionality of the relevant provision of the current Copyright Act with the attendant incorporation of a provision similar to Section 19D of the CAB or presidential assent to the CAB? The latter would need Parliament to pass the Bill, transmit to the President for his assent and the President's assent to the Bill.