Many ways to skin a cat (Pt 2): South Africa’s Constitutional Court upholds the declaration on the unconstitutionality of parts of the Copyright Act

As IPKat readers may recall, the BlindSA’s pursuit of other legal means to achieve its aim of using copyright exceptions to legitimise unlicensed access to copyright-protected works for visually impaired persons was successful at the High Court. As this Kat reported here, a High Court in Gauteng Division in 2021 granted 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.

Ramifications??

In terms of section 167(5) of South Africa’s Constitution, the order of the High Court needed to be confirmed by the Constitutional Court for such order to have any force.

The Constitutional Court (ConCourt) has today (21 September 2022) confirmed specific portions of the High Court’s judgment thus:

• It is declared that sections 6 and 7, read with section 23 of the Copyright Act 98 of 1978, are unconstitutional, invalid and inconsistent with the rights of persons with visual and print disabilities, as set out in sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution, to the extent that these provisions of the Copyright Act limit the access of such persons to published literary works, and artistic works as may be included in such literary works, in accessible format copies.
• A person with a visual and print disability … means a person who— (a) is blind; (b) has a visual impairment or a perceptual or reading disability which cannot be improved to give visual function substantially equivalent to that of a person who has no such impairment or disability and so is unable to read printed works to substantially the same degree as a person without an impairment or disability; or (c) is otherwise unable, through physical disability, to hold or manipulate a book or to focus or move the eyes to the extent that would normally be acceptable for reading regardless of any other disabilities.
• The order of the High Court is otherwise set aside, save for its order as to costs.

While the declaration of unconstitutionality takes effect from the date of the judgment, the Constitutional Court gave a period of 24 months to enable Parliament to cure the defect in the Copyright Act giving rise to its invalidity.

(Initial) comment

Given this decision, this Kat’s question as to which would happen first (i.e., 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 Copyright Amendment Bill (CAB) or presidential assent to the CAB), has been somewhat answered.

More significantly, the ConCourt took a more conservative approach compared to the approach of the High Court. While the High Court’s decision essentially incorporated the new proposed section 19D contemplated by clause 20 of the Copyright Amendment Bill [B 13B-2017] into the Copyright Act, the ConCourt only addressed access to “published literary works, and artistic works as may be included in such literary works, in accessible format copies”. [Is this an indication of how the Copyright Amendment Bill or at least, the domestication of the Marrakesh Treaty will turn out?]

The revised Copyright Amendment Bill was passed by Parliament earlier this month and is currently with the National Council of Provinces for their concurrence. However, all these events go to show that the journey to copyright reform is indeed a long walk.

Detailed analysis to follow on the copyright reform process in South Africa vis-à-vis the Constitutional Court’s decision…