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

Blind SA, a non-profit organisation representing blind persons, challenged the Copyright Act 98 of 1978 on the basis that it limits access by persons with visual and print disabilities to published literary works in accessible format copies. The Act required authorisation from copyright owners to convert works into accessible formats (e.g. Braille, audio, large print). This requirement resulted in a scarcity of accessible books - only 1-7% of books worldwide are published in accessible formats. The evidence showed that persons with visual and print disabilities struggled to obtain textbooks, educational materials, and other literary works, severely disadvantaging blind and visually impaired learners and adults. The Copyright Amendment Bill (CAB), which included proposed section 19D to address this issue and align with the Marrakesh Treaty, had been delayed in Parliament since 2015. Blind SA approached the High Court in 2021, which declared the Copyright Act unconstitutional in an unopposed application. The matter came to the Constitutional Court for confirmation.

• Whether sections 6, 7 and 23 of the Copyright Act 98 of 1978 are unconstitutional insofar as they limit access by persons with visual and print disabilities to published literary works in accessible format copies
• Whether the requirement for authorisation from copyright owners to create accessible format copies constitutes unfair discrimination on the grounds of disability
• Whether section 13 of the Copyright Act, which permits the Minister to make regulations regarding reproduction of works, cures the constitutional defects
• Whether the conversion of literary works into accessible format copies requires only 'reproduction' or also 'adaptation' under the Copyright Act
• What constitutes a just and equitable remedy, including whether section 19D of the proposed Copyright Amendment Bill should be read into the Act

The Constitutional Court confirmed the High Court's order of invalidity with modifications. It declared sections 6, 7 and 23 of the Copyright Act unconstitutional to the extent they limit access by persons with visual and print disabilities to published literary works (and included artistic works) in accessible format copies. The declaration was suspended for 24 months to allow Parliament to remedy the defect. During the suspension, the Court deemed new section 13A to be included in the Copyright Act, creating exceptions for 'permitted entities' and beneficiary persons to make and supply accessible format copies without copyright owner authorisation, subject to specified conditions. The Minister of Trade, Industry and Competition was ordered to pay Blind SA's costs, including two counsel.

The requirement in the Copyright Act for authorisation from copyright owners before converting published literary works into accessible format copies for persons with visual and print disabilities constitutes unfair discrimination on the grounds of disability and infringes sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution. Legislation must account for differential impacts on different classes of persons; where persons with disabilities suffer particular hardship from generally applicable requirements, those requirements cannot be applied as if all persons are similarly situated. Section 13 of the Copyright Act does not cure this constitutional defect because it only permits 'reproduction' of works, whereas creating accessible format copies often requires both reproduction and adaptation. The distinction is that reproduction involves copying into another format without changing content, while adaptation requires creative or interpretative engagement that changes content. Many accessible formats (Braille, audio descriptions, textual descriptions of images) require adaptations, not mere reproductions. An interim reading-in remedy is appropriate where rights violations are immediate and pressing, balanced against parliamentary authority to determine final legislative design.

The Court made several non-binding observations: (1) The case was properly confined to published literary works (and included artistic works) and did not extend to unpublished works, all copyright works, or issues of import/export and distribution. (2) The Marrakesh Treaty provides useful guidance but is not the constitutional standard for measuring invalidity under section 172(1)(a). (3) Courts must exercise caution when framing remedies and not exceed the boundaries of the case pleaded - remedies cannot be reverse-engineered from desired outcomes to rights. (4) The reading-in remedy is imperfect but adequate for the interim period. (5) How best to domesticate the Marrakesh Treaty and whether South Africa should ratify it are matters for Parliament, not the courts. (6) The exact boundary between reproduction and adaptation in copyright law is difficult to draw and context-dependent. (7) While some accessible format copies may only require reproduction, others require latitude to use adaptation to best render works accessible. (8) Technologies for creating accessible formats are developing and Parliament should allow maximum flexibility.

This landmark judgment establishes important principles regarding disability rights and copyright law in South Africa. It recognizes that formal equality is insufficient - the state must sometimes provide differential treatment to achieve substantive equality for persons with disabilities. The case demonstrates that legislation must account for differential impacts on different classes of persons. The judgment balances intellectual property rights with fundamental human rights, holding that copyright protection cannot become an instrument to disadvantage persons with disabilities. It affirms that access to literary works is essential for dignity, expression, education and cultural participation. The case illustrates the Court's remedial flexibility in crafting interim relief while respecting parliamentary authority. It also clarifies the distinction between reproduction and adaptation in copyright law. The judgment aligns South African law with international human rights standards, particularly the Marrakesh Treaty, while leaving final legislative design to Parliament. It establishes a precedent for challenging laws that, while neutral on their face, have discriminatory effects on persons with disabilities.