Long walk to copyright reform (Pt 5B): Contents and process: The Blind SA decision and the Constitutional Court

This is the promised second part of the post reviewing the South African MPs’ opposition to the Copyright Amendment Bill (CAB). As stated in the first part, “[g]iven that the key concerns against the CAB was that if passed, it may end up before the ConCourt, it appears the Court’s decision in Blind SA v Minister for Trade, Industry and Competition & others may offer a foretaste of what could happen should the CAB end up before that court”. 

Quantity or quality?...

As already reported here on The IPKat, this case was an application for confirmation of an order of the High Court declaring some provisions of South Africa’s Copyright Act unconstitutional, to the extent that it: (a) limits and/or prevents persons with visual and print disabilities from accessing works under copyright that persons without such disabilities are able to access; and (b) does not include provisions designed to ensure that persons with visual and print disabilities are able to access works under copyright in the manner contemplated by the Marrakesh Treaty. For this present post, the focus is on highlighting the approach of the ConCourt to dealing with the matter as it touched/touches on the CAB, its content (i.e., provisions) and processes. 

Matters of content

Blind SA did not only ask for a declaration of unconstitutionality, it also requested the Court to remedy the unconstitutionality by reading into the Copyright Act, a provision that is currently a clause in the CAB - proposed section 19D which has the heading “[g]eneral exceptions regarding protection of copyright work for persons with disability’. By the ‘reading-in remedy’, the relevant provisions of the Copyright Act would be read as though it also contains the proposed section 19D.

As readers may already be aware, the Constitutional Court confirmed the declaration of unconstitutionality but differed from and varied the decision of the High Court on the issue of the appropriate relief/remedy in the circumstances. The Constitutional Court found that confirmation proceedings such as was before it are not routine matters instead the court has to satisfy itself that the provision complained of is inconsistent with the Constitution. Furthermore, the Constitutional Court’s remedy had to, according to that court, be restricted to the case pleaded by Blind SA. The case pleaded was:

• The matter was brought on behalf of persons with visual and print disabilities [Based on this, the reading-in remedy was restricted to this class of persons. This means that persons with other forms of disabilities who are adversely affected by the Copyright Act must either bring their own case or wait for the CAB to become law.]
• The case pleaded referred only to published literary works even though other works were referenced in general terms. See paragraphs 48-49, 51. No case was made out for access to unpublished literary works. See paragraph 61
• The case pleaded referred only to the constitutional infirmity occasioned by the right of a copyright owner under the Copyright Act to authorise reproduction or adaptation of a literary work. See paragraph 88 [Based on this, the power conferred on the Minister of Trade, Industry and Competition under section 13 of the Copyright Act which is confined to making regulations relating to reproduction of a work cannot cure the constitutional infirmity regarding the adaptation of a work.]

So what reading-in addressed the case pleaded by BlindSA and how does it speak to content concerns regarding the CAB? According to the ConCourt in paragraph 105 of the judgment, “the wholesale adoption of section 19D cannot be ordered as interim relief [because] [i]t covers grounds beyond the challenge established by Blind SA”.

In this Kat’s opinion, this suggests that at least some aspects of section 19D are considered constitutional and as for the other aspects relating to the case pleaded by Blind SA, we all have to await the passing of the CAB. By extension, should any of the the content concerns about the CAB end up before the Constitutional Court, each of those provisions will be subject to scrutiny vis-à-vis the case pleaded.

What about process?

The process concerns by the MPs are also quite interesting especially in the light of an ongoing matter before the Constitutional Court. In Constance Mongale and 3 others v Speaker of the National Assembly and 15 others, which was heard on 23 February 2023, the applicants’ complaints were inter alia that “Parliament and the Provincial Legislatures have failed to comply with their constitutional obligation to facilitate public involvement, as required by sections 72(1)(a) and 118(1)(a) of the Constitution, before passing the Traditional and Khoi-San Leadership Act 3 of 2019 (“the TKLA”)” and as such the TKLA should be declared invalid. The failure was that these legislative bodies “failed to reasonably facilitate public participation in the legislative process”. According to the founding affidavit, this failure manifested inter alia in the fact that public hearings were held with either no notice at all or notices of one or two days; copies of the Bill were not provided even when notices were issued; no summary of the Bill with salient issues were provided and the documents provided were often in a language that traditional communities affected by the Bill could not understand, etc. See paragraph 14 of the application and founding affidavit. [Is this kind of “failure to reasonably facilitate public participation” plaguing the CAB? In the Blind SA High Court judgement, the court noted the “copious absence” of authors given that they could have but did not participate in the proceedings. See paragraph 16 of that judgement.]

The observation of the ConCourt in Blind SA appears to suggest (at least in this Kat’s opinion) that the process leading to the CAB and its possible passage into law has been a long walk indeed and that the problem might instead be with the length of the process rather than public participation. Two paragraphs from the judgement:

“[62] Third, the failure by Parliament to pass into law the CAB, and, in particular, the failure to legislate so as to remedy the scarcity of literary works in accessible format copies is traversed by Blind SA to explain why it comes to the courts to seek relief, rather than awaiting the long delayed parliamentary process. But no relief is sought to bring under constitutional review Parliament’s delay…

[102] The starting point is this: persons with print and visual disabilities should not have to wait further to secure a remedy. The parliamentary process has already taken too long. The need to address the infringement of rights is pressing. There must be a remedy granted that provides immediate redress. Section 237 of the Constitution places a duty on organs of state that “constitutional obligations must be performed diligently and without delay”. However, Parliament must be afforded an opportunity to cure the constitutional defect we have found to exist”. (emphasis provided)

This said, whether the length of the journey has any bearing or should have any bearing on ‘quality’ of the journey in terms of public participation is an entirely different matter. In Constance Mongale and 3 others v Speaker of the National Assembly and 15 others, the key issue was the customary law nature of the TKLA and the class of stakeholders involved, i.e. traditional and Khoi-San communities. On the other hand, the CAB affects every class of society albeit with different impact as the Blind SA decision has amply shown.

(Still initial) Conclusion

Regarding “content concerns”, it seems to this Kat that South African courts have the competence to develop the copyright jurisprudence while staying within the bounds of separation of powers if the cases are brought before them. Regarding process, it would be interesting to see what is considered sufficient in terms of quantity and quality of public hearings and engagement.

For now, we wait and see what the NCOP will say about the CAB.

Stay tuned…

Follow the long walk:

Long Walk to Copyright Reform #1

Long Walk to Copyight Reform #2

Long Walk to Copyright Reform #3

Long Walk to Copyright Reform #4

Long Walk to Copyright Reform #5A