CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 320/21
In the matter between:
BLIND SA Applicant
and
MINISTER OF TRADE, INDUSTRY AND
COMPETITION First Respondent
MINISTER OF INTERNATIONAL RELATIONS AND
COOPERATION Second Respondent
SPEAKER OF THE NATIONAL ASSEMBLY Third Respondent
CHAIRPERSON OF THE NATIONAL COUNCIL OF
PROVINCES Fourth Respondent
PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA Fifth Respondent
and
OWEN DEAN First Amicus Curiae
MEDIA MONITORING AFRICA TRUST Second Amicus Curiae
INTERNATIONAL COMMISSION OF JURISTS Third Amicus Curiae
Neutral citation: Blind SA v Minister of Trade, Industry and Competition and Others
[2022] ZACC 33
Coram: Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J, Tshiqi J and Unterhalter AJ
Judgment: Unterhalter AJ (unanimous)
Heard on: 12 May 2022
Decided on: 21 September 2022
Summary: Copyright Act 98 of 1978 — constitutionality of sections 6 and 7,
read with section 23 — provisions are unconstitutional —
infringement of 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
ORDER
On application for confirmation of an order of constitutional invalidity granted by the
High Court of South Africa, Gauteng Division, Pretoria (Mbongwe J):
1. The order of the High Court of South Africa, Gauteng Division, Pretoria
declaring the Copyright Act 98 of 1978 inconsistent with the Constitution
is confirmed to the extent provided in paragraph 2.
2. 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 per sons 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.
3. A person with a visual and print disability described in paragraph 2 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.
4. The order of the High Court is otherwise set aside, save for its order as to
costs.
5. The declaration of un constitutionality in paragraphs 1 and 2 takes effect
from the date of this judgment and is suspended for a period of 24 months
to enable Parliament to cure the defect in the Copyright Act giving rise to
its invalidity.
6. During the period of susp ension referred to in paragraph 5, the
Copyright Act shall be deemed to include the following additional
provisions:
“Section 13A Exceptions applicable to beneficiary persons
(1) For the purposes of section 13A—
(a) ‘accessible format copy’ means a copy of a work in an
alternative manner or form which gives a beneficiary
person access to the work, including to permit the person
to have acce ss as feasibly and comfortably as a person
without visual impairment or other print disability. The
accessible format copy must be used exclusively by
beneficiary persons and it must respect the integrity of the
original work, taking due consideration of the changes
needed to make the work accessible in the alternative
format and of the accessibility needs of the beneficiary
persons;
(b) ‘beneficiary person’ means a person who—
(i) is blind;
(ii) 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
(iii) 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;
(c) ‘literary works’ means literary works as defined in
section 1 of this Act, and shall be taken to include
artistic works forming part of a literary work;
(d) ‘permitted entity’ means an entity, including a government
institution or non -profit organisation, that provides
education, instructional training, adaptive read ing or
information access to beneficiary persons on a non -profit
basis, and has the provision of such services as one of its
primary activities or institutional obligations.
(2) A permitted entity may, without the authorisation of the owner of
copyright in a literary work, make an accessible format copy of the
literary work; obtain from another permitted entity, an accessible
format copy, and supply those copies to beneficiary persons by any
means, including non -commercial lending or by electronic
communication by wire or wireless means, and undertake any
intermediate steps to achieve those objectives, provided that all of
the following conditions are met—
(a) the permitted entity wishing to undertake said activity has
lawful access to that work or a copy of that work;
UNTERHALTER AJ
5
(b) the work is converted to an accessible format copy, which
may include any means needed to navigate information in
the accessible format, but does not introduce changes other
than those needed to make the work accessible to the
beneficiary person;
(c) such accessible format copies are supplied exclusively to
be used by beneficiary persons; and
(d) the activity is undertaken on a non-profit basis.
(3) A beneficiary person, or someone acting on their behalf, including
a primary caretaker or caregiver, may make an accessible format
copy of a work for the personal use of the beneficiary person or
otherwise may assist the beneficiary person to make and use
accessible format copies where the beneficiary person ha s lawful
access to that work or a copy of that work.”
7. The Minister of Trade, Industry and Competition shall pay the applicant’s
costs in this Court, including costs of two counsel.
JUDGMENT
UNTERHALTER AJ (Kollapen J, Madlanga J, Majiedt J, Mathopo J, Mhlantla J,
Mlambo AJ, Theron J and Tshiqi J concurring):
Introduction
[1] This is an application for confirmation of an order granted by the High Court of
South Africa, Gauteng Division, Pretoria ( High Court), declaring the Copyright Act1
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
1 98 of 1978.
UNTERHALTER AJ
6
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.2 The application was brought in
terms of section 172(2)(d) of the Constitution, read with section 15(1)(b) of the
Superior Courts Act3 and rule 16(4) of this Court’s Rules.
Parties
[2] The applicant is Blind SA, a non-profit organisation established for the purpose
of promoting the interests of blind people in South Africa. The first respondent is
the Minister of Trade, Industry and Competition (Minister). The Minister is responsible
for the administration of the Copyright Act and enjoys the power to make regulations
under the Act. The Minister did not oppose the application before this Court but he did
file wri tten submissions. The second to fifth respondents are the Minister of
International Relations and Cooperation, the Speaker of the National Assembly, the
Chairperson of the National Council of Provinces and the President of the Republic of
South Africa. T he second to fifth respondents were jo ined as respondents in the
High Court p roceedings but did not file any papers before the High Court, nor in
this Court.
Amici curiae
[3] The first amicus curiae is Professor Owen Dean, an attorney who has long
practiced copyright law. He is also a leading academic in the field . Additionally,
Professor Dean is a Professor Emeritus and research fellow of the University of
Stellenbosch, and the author of an important text, the Handbook of South Afri can
Copyright Law .4 Professor Dean’s application to intervene as amicus curiae was
accompanied by an application to adduce further evidence in terms of rule 31 of this
Court’s Rules. He raises issues as to whether Blind SA’s application is sound. The
2 Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired, or
Otherwise Print Disabled, 27 June 2013.
3 10 of 2013.
4 See Dean Handbook of South African Copyright Law (Juta & Co Ltd, Cape Town 1987).
UNTERHALTER AJ
7
second amicus curiae is Media Monitoring Africa Trust (MMA), a non -profit
organisation that operates in the public interest to promote the development of a free,
fair, ethical and critical media in South Africa. The third amicus is the International
Commission of Jurists (ICJ), a non -governmental organisation which has defended
human rights and promoted the rule of law throughout the world, since 1952.
Background and the legislative process
[4] The crux of this matter concerns Blind SA’s contention that the Copyright Act
limits the availability of works under copyright in formats accessible to persons with
print and visual disabilities .5 The Copyright Act requires the consent of the
copyright owner to convert works into formats suitable for the use of persons with print
and visual disabilities. As a result, such persons suffer limitations, often of a severe
kind, in accessing works under copyright that persons without these disabilities do not
encounter.
[5] There is a legislative process under way to amend the Copyright Act. However,
this process has endured since 2015 when the Minister published a draft Copyright
Amendment Bill ( CAB)6 for public comment on 27 July 2015. The CAB proposed a
new section 19D , under the heading “ [g]eneral exceptions regarding pro tection of
copyright work for persons with disability”. On 16 May 2017, the CAB was introduced
into the National Assembly as a section 75 Bill (ordinary bills not affecting provinces).
[6] On 28 March 2019, Parliament passed the CAB. On 16 June 2020, the CAB was
referred back to the National Assembly by the President in terms of section 79(1)7 of
the Constitution. The National Assembly’s decision to pass the CAB has been
rescinded and it has been reclassified as a section 76 Bill (ordinary bills affecting
5 The term “persons with print and visual disabilities” also includes blind persons.
6 [B 13B-2017].
7 Section 79(1) states that “[t]he President must either assent to and sign a Bill passed in terms of this Chapter or,
if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for
reconsideration”.
UNTERHALTER AJ
8
provinces).8 As a result, section 19D has not been passed into law due to this lengthy
legislative process.
[7] The proposed section 19D9 would allow for the conversion of copyright works
into an accessible format copy, “but which does not introduce changes other than those
needed to make the work accessible to a person with a disability”.10
Litigation history
[8] Aggrieved by the inordinate delay of the legislative process, Blind SA
approached the High Court for an order declaring the Copyright Act unconstitutional to
the extent that it unjustifiably limits the rights of persons with visual and print
8 Blind SA describes how the reclassification of the CAB means that—
“it will be subject to several additional parliamenta ry and provincial legislative processes, including a
rigorous public participation process, before its finalisation. At the provincial level, it may even open
up to debate provisions of the CAB in respect of which no concerns were raised by the President. ”
9 The proposed section 19D reads as follows:
“(1) Any person as may be prescribed and that serves persons with disabilities may, without the
authorization of the copyright owner, make an accessible format copy for the benefit of a person
with a disability, supply that accessible format copy to a person with disability by any means,
including by non-commercial lending or by digital communication by wire or wireless means,
and undertake any intermediate steps to achieve these objectives, if the following conditions are
met:
(a) The person wishing to undertake any activity under this subsection must have lawful
access to the copyright work or a copy of that work;
(b) The copyright work must be converted into an accessible format copy, which may
include any means necessary to create such accessible format copy but which does not
introduce changes other than those needed to make the work accessible to a person with
a disability; and
(c) The activity under this subsection must be undertaken on a non-profit basis.
(2)(a) A person with a disability, or a person that serves persons [with] disabilities, to whom
the work is communicated by wire or wireless means as a result of an activity under
subsection (1) may, without the authorisation of the owner of the copyright work,
reproduce the work for personal use.
(b) The provisions of paragraph (a) are without prejudice to any other limitations
or exceptions that the person referred to in that paragraph may enjoy.
(3) A person with a disability or a person that serves persons with d isabilities may without the
authorization of the copyright owner export to or import from another country any legal copy
of an accessible format copy of a work referred to in subsection (1), as long as such activity is
undertaken on a non-profit basis by that person.
(4) The exception created by this section is subject to the obligation of indicating the source and
the name of the author on any accessible format copy in so far as it is practicable.’’
10 Id.
UNTERHALTER AJ
9
disabilities. On 7 December 2021, the High Court delivered a judgment in w hich it
declared the Copyright Act to be unconstitutional to the extent t hat it fails to make
provision for exceptions that would enable, through the conversion of works, access to
such works by persons with visual and print disabilities. 11 The application was
unopposed.
[9] The High Court held that despite the alternative formats available for blind
persons and those with visual and print disabilities, the Copyright Act was restrictive of
the free conversion of works under copyright into alternative formats.12 This meant that
the consent of copyright owners was required to convert works under copyright into
formats that enabled persons with print and visual disabilities to have equal access to
information. The High Court found the statutory prohibition of the free conversion of
works to be discriminatory and inconsistent with section 9 of the Constitution.13
[10] Furthermore, the High Court held, that acting in accord with South Africa’s
intent to ratify the Marrakesh Treaty, Parliament adopted the CAB which proposes the
insertion of section 19D to create exceptions to the Copyright Act.14
[11] The High Court also considered the delay in adopting the CAB. It noted that
section 19D was not the subject of controversy in Parliament. The Court found the
delay to be unreasonable and contrary to section 36(1) of the Constitution as it
unjustifiably perpetuates the violation of the rights of visually and print disabled
persons.15
[12] Three amici curiae made submissions before the High Court, namely the ICJ,
MMA and Recreate Action. The amici supported the application before the High Court.
11 Blind SA v Ministry of Trade, Industry and Competition 2021 JOL 52197 (GP) (High Court judgment) at
para 28.1.
12 Id at paras 4-5.
13 Id at para 6.
14 Id at para 10.
15 Id at para 11.
UNTERHALTER AJ
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The ICJ supported Blind SA’s submission that the Copyright Act ought t o be aligned
with the Marrakesh Treaty to cure the inconsistency of the Copyright Act with the
Constitution and acceptable international standards .16 The MMA argued that the
Copyright Act was i nconsistent with domestic, regional and international obligations.
It made submissions as to the importance of the recognition of the right to freedom of
expression and the need freely to receive and share ideas in the digital era . 17 As to
Recreate Africa, the High Court did not find the arguments made by Recreate Africa to
have been of assistance.18
[13] The High Court declared the Copyright Act unconstitutional and made the
following order:
“In the light of the findings in this judgment and subject to confirmation by the
Constitutional Court the following order is made:
1. The Copyright Act 98 of 1978 is declared unconstitutional in terms of
section [172(a)] of the Constitution Act, 1996.
2. In terms of the provisions of section [172(2)(a)] it is ordered that the provisions
of the Copyright Amendment Bill [B 13B -2017], quoted in paragraph 9 of this
Judgment, ought to forthwith be read as if specifically incorporated in the
provisions of the Copyright Act of 1978 to remove the inconsistency of the Act
with the Constitution.
3. The operation of the declaration of unconstitutionality referred to in order 1 is
suspended for period of 24 months to afford Parliament an opportunity to
remedy the defect [giving] rise to the unconstitutionality.
4. The Cop yright Act is, from the date of this order, deemed to read as if it
contains the new proposed section 19D contemplated by clause 20 of the
Copyright Amendment Bill [B 13B-2017].
4.1. Pending a decision of the Constit utional Court, in confirmation
proceedings, on the validity of the Copyright Act; and
16 Id at paras 18-9.
17 Id at para 23.
18 Id at para 26.
UNTERHALTER AJ
11
4.2 Pending Parliament’s remedying of the defect giving rise to the
unconstitutionality, in the event the Constitutional Court confirms the
declaration of invalidity.
5. In the event Parliament does not remedy the constitutional defect within
24 months of the order of the Constitutional Court, the order in 2 above shall
continue to apply.
6. Save in respect of ReCreate, the First Respondent is ordered to pay the costs of
this application which costs shall include the costs consequent upon the
employment of two Counsel, where applicable.”
In this Court
[14] The submissions made by Blind SA, the Minister and amici covered a wide range
of issues . These included the need to align the Copyright Act with the
Marrakesh Treaty, as well as other International Agreements such as the Berne
Convention,19 TRIPS Agreement ,20 the Convention on the Rights of Persons with
Disabilities21 (CRPD) and the International Covenant on Economic, Social and Cultural
Rights22 (ICESCR). Submissions were also made regarding the possible importation
and export of copyright works for purposes of making accessible format copies
available to visually and print disabled persons.
Applicant’s submissions
The pleaded case
[15] Blind SA seeks an order declaring the 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 includ e provisions designed to ensure that persons with visual and
19 Berne Convention for the Protection of Literary and Artistic Works, 9 September 1886. The Berne Convention
has since been revised.
20 The Agreement on Trade-Related Aspects of Intellectual Property Rights, 15 April 1994.
21 Convention on the Rights of Persons with Disabilities, 13 December 2006.
22 International Covenant on Economic, Social and Cultural Rights, 16 December 1966.
UNTERHALTER AJ
12
print disabilities are able to access works under copyright in the manner contemplated
by the Marrakesh Treaty.
[16] In the founding affidavit, Blind SA submitted that section 2 of the Copyright Act
lists types of original works eligible for copyright in South Africa. These works include
literary works, artistic works, cinematogra phic films and a range of other works under
copyright. However, having listed these works, Blind SA only explains how the
Copyright Act impedes access to published literary works. The founding affidavit is
also confined to securing the rights of persons with print and visual disabilities.
Reproductions and adaptations, and section 13 and section 19D
[17] Blind SA submits that copyright owners have near exclusive control over the
reproduction, publication, performance, broadcast, transmission and adaptation of
works under copyright. Unless it falls within a legislated exception, or is authorised by
the copyright owner, any use of such work is an infringement of copyright and gives
rise to civil and , potentially, criminal sanction. Therefore, the legislative framework
must provide an express exception to permit the production of accessible format copies.
The alter native is that persons with visual and print disabilities must contact every
copyright owner to secure authorisation to produce accessible format copies. As a
result, so Blind SA submits, the Copyright Act unfairly discriminates against persons
with visual and print disabilities.
[18] Blind SA observes that, read together with section 39(a), 23 section 1324 of the
Copyright Act empowers the Minister to make regulations that contemplate further
types of reproduction in respect of works under copyright. Blind SA submits that
23 Section 39(a) states that “[t]he Minister may make regulations as to any matter required or permitted by this Act
to be prescribed by regulation”.
24 In terms of section 13, “[i]n addition to reproductions permitted in terms of [the Copyright Act] reproduction
of a work shall also be permitted as prescribed by regulation, but in such a manner that the reproduction is not in
conflict with a normal exploitation of the work and is not unreasonabl y prejudicial to the legitimate interests of
the owner of the copyright.”
UNTERHALTER AJ
13
the Minister’s power to prescribe general exceptions only applies to reproducing works.
Section 13 may not be used to authorise acts beyond this.
[19] Blind SA argues that this Court has drawn a clear distinction between the lawful
delegation of authority to make subordinate legislation and the assignment of plenary
legislative power to the Executive. Therefore, section 13 should be interpreted narrowly
to avoid the unlawful assignment of plenary legislative power.
[20] Additionally, Blind SA submits that leaving the realisation of the rights of a
marginalised group of people to the whims of the Minister, in circumstances where he
and his predecessors have failed to act for over two decades, is an affront to the dignity
of persons with visual and print disabilities. Therefore, so Blind SA submits,
sections 13 and 39(a) of the Copyright Act do not provide a statutory basis to afford
access by print-disabled persons to accessible format copies.
[21] If this Court finds that section 13 is indeed capable of a broad,
constitutionally-compliant interpretation , then section 13 is limited by its wording ,
which only applies to reproductions.
[22] Blind SA submits that although a n accessible format copy of a work requires
reproduction, mere reproduction does not cover activities such as distribution and
transmission to the requesting entity. Accordingly, even if reproduction under the
Copyright Act were interpreted broadly, it would still fail to comply with Article 4(1)(a)
of the Marrakesh Treaty which states that—
“[c]ontracting parties shall provide in their national copyright laws for a limitation or
exception to the right of reproduction, the right of distribution, and the right of making
available to the public as provided by the WIPO Copyright Treaty (WCT), to facilitate
the availability of works in accessible format copies for beneficiary persons .”
(Emphasis added.)
UNTERHALTER AJ
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[23] Thus, an exception granted solely in respect of reproduction would be
inadequate.
[24] Blind SA further contends that by impeding access to works, the Copyright Act
limits a range of constitutionally -entrenched rights that persons with visual and print
disabilities enjoy . These rights are the rights to equality, human dignity, basic and
further education, freedom of expression, and participa tion in the cultural life of one’s
choice. Blind SA says that the Copyright Act, as a law of general application, is not
justifiable in terms of section 36(1) of the Constitution. Blind SA submits that the
violation of so many intersecting rights is ordinarily very difficult to justify and that
their limitation does not serve any legitimate purpose, as copyright owners do not stand
to lose anything from the relief sought.
[25] As to remedy, Blind SA argues that it would be just and equitable for this Court
to exercise its broad remedial powers in terms of section 172(1)(b) of the Constitution,25
and read-in, with immediate effect, section 19D. Blind SA submits that a suspension
of the order of invalidity is incompetent because it purports to suspend the operation of
an order that is not in operation in any event.
[26] Blind SA also responds to the submission s made by the first amicus,
Professor Dean. He opines that the text of section 19D cannot operate in the absence
of two definitions that clauses 1(a) and (h) of the CAB seek to insert into section 1 of
the Copyright Act: “accessible format copy”; and “person with a disability”. Blind SA
25 Section 172(1) of the Constitution states:
“When deciding a constitutional matter within its power, a court—
(a) must declare that any law or conduct that is inconsistent with the Constitution
is invalid to the extent of its inconsistency; and
(b) may make any order that is just and equitable, including—
(i) an order limiting the retrospective effect of the declaration of
invalidity;
(ii) an order suspending the declaration of invalidity for any period and
on any conditions, to allow the competent authority to correct the
defect.”
UNTERHALTER AJ
15
responds that, to the extent that there may be any doubt as to what is meant by
“accessible format copy” and “p erson with a disability”, regard may be had to the
relevant definitions in the Marrakesh Treaty. Additionally, Blind SA says that regard
may be had to the treatment of unfair discrimination on the basis of disability in various
decisions of our courts as also how disability is defined in other statutes.
[27] Alternatively, Blind SA submits that this Court could, using its powers in terms
of section 172(1)(b) of the Constitution , make a just and equitable order that the two
phrases, when used in section 19D, be ar particular meanings, either as defined in the
CAB, or in the Marrakesh Treaty. Or in its order, this Court could also read-in the new
proposed statutory definitions of “accessible format copy” and “person with a
disability”.
[28] Blind SA contends that section 19D is not controversial, that the reading -in
remedy is effective and operable and that the proposed remedy is not at odds with the
Marrakesh Treaty and other international instruments. Blind SA says that the proposed
reading-in remedy would be effective and operable, because multiple state parties to the
Marrakesh Treaty do not define the scope of works to which accessible format shifting
applies within their individual domestic cop yright statutes. Therefore, section 19D is
not an outlier. Furthermore, even in the absence of the definitions of “accessible format
copy”, “persons with disabilities” and “a person who serves persons with disabilities” ,
the remedy is not vague because section 233 of the Constitution requires that , where
reasonably possible, legislation must be interpreted in a manner consistent with binding
international law.
First respondent’s submissions
[29] The Minister does not oppose the confirmation of the declaration of invalidity.
The Minister only makes submissions in favour of the suspension of the declaration of
invalidity to assist th is Court to determine the appropriate remedy. The Minister
submitted that while it is true that no particular concern has been raised regarding the
constitutionality of secti on 19D, concerns have been raised as to whether the section
UNTERHALTER AJ
16
sufficiently and appropriately defines terms which go to the heart of facilitating access
of print material s to those who require access. As a result, Parliament is already
considering whether th e section requires amendments to co mply with the
Marrakesh Treaty.
[30] The Minister says also that the relief sought by Blind SA , namely a final
reading-in without suspension of the finding of unconstitutionality, is inappropriate .
Rather, a suspension coupled with an interim reading -in is a remedy that does not
intrude unduly into the domain of Parliament.
[31] During oral submissions, the Minister was referred to Professor Dean’s proposal
that a regulation be promulgated under section 13 for purposes of allowin g print and
visually disabled persons access to copyrighted works. The proposed regulation is titled
“[e]xception regarding protection of copyright work for persons with disability”.
[32] When asked about this proposed regulation under section 13, the Minister argued
that the purpose of section 19D is not only to align the Copyright Act with the
Marrakesh Treaty and protect the rights of print and visually disabled persons.
According to the Minister, section 19D encompasses a broader government policy to
align the Copyright Act with various international obligations and protect the rights of
all disabled persons. The Minister rejected this proposed regulation under section 13
on the basis that section 13 is too limited , that the Minister cannot be so d irected, and
that the proposed regulation under section 13 would amount to the Minister acting
ultra vires.
First amicus curiae’s submissions
[33] Professor Dean submits that the Copyright Act is not unconstitutional because
section 13 permits the Minister to promulgate regulations which would allow for the
reproduction of works under copyright in the manner contemplated by Blind SA.
Professor Dean contends that the High Court’s reading -in of section 19D i s
inappropriate. He says this relief was granted on the erroneous assumption that this
UNTERHALTER AJ
17
provision of the CAB was uncontroversial . He submits that the Minister and the
Parliamentary Legal Adviser have delivered reports identifying problems with
section 19D. Additionally, the Portfolio Committ ee published a redrafted version of
section 19D for public comment.
[34] Professor Dean submits that section 19D is not consistent with the
Marrakesh Treaty and creates various lacuna e if the reading-in does not include other
provisions of the CAB. The various terms that have not been defined in section 19D
such as “accessible format copy” and “persons with disability” mean that the provision
is not self-executing. He submits that this Court cannot craft definitions of previously
undefined terms because this Court would be assuming a legislative role and violating
the separation of powers.
[35] Professor Dean contends that section 19D, in its current form, does not comply
with the three-step test. In terms of the three -step test, articulated in Article 13 of the
TRIPS Agreement26 and Article 9(2) of the Berne Convention, 27 the exception must
only cover certain special cases; must not conflict with the normal exploitation of the
work; and must not unreasonabl y prejudice the legitimate interests of the owner of
copyright. A provision that permits of blanket access to accessible format copies o f
works under copyright must comply with the three -step test to be consistent with
international law.
[36] Professor Dean proposes a regulation to be promulgated under sect ion 13. The
proposed regulation is titled “ [e]xception regarding protection of copyright work for
persons with disability”.
26 Article 13 of the TRIPS Agreement states that “[m] embers shall confine limitations or except ions to exclusive
rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably
prejudice the legitimate interests of the right holder.”
27 Article 9(2) of the Berne Convention states that—
“[i]t shall be a matter for legislation in the countries of the Union to permit the reproduction of
such works in certain special cases, provided that such reproduction does not conflict with a
normal exploitation of the work and does not unreasonably prejudice the legitimate interests of
the author.”
UNTERHALTER AJ
18
[37] Professor Dean further submits that an exception that permitted the reproduction
of copyrighted works would be sufficient to enable the conversion of works into
accessible use format because the definition of “reproduction” 28 is broad enough to
incorporate the making of any derivative version where the reproducer does not add any
contribution of their own, or change the ideological content of the work .
Professor Dean says c onversion to an accessible use format – for example, braille
entails the reproduction of an existing work into a different format. There is no change
to the content of the original work during this process and it is, in essence, a mechanical
process which seeks to present the exact original work in a new form.
[38] By contrast, “adaptation” requires the person making the adaption to embroider
on, or transform, the original work by making a contribution to the content of the work.
It results in a version which is a new work, that enjoys its own copyright protection .
Professor Dean provides a translation as an example, and says, in giving expression to
a work in a different language and syntax , but retaining the essence of its ideological
content, the translator changes or converts the work and creates a unique new work.
The translation is an adaption, not a reproduction.
[39] Professor Dean concludes that format shifting only entails reproduction and thus
does not require a broader exception than that permitted by section 13. He submits
further that Article 4(1)(a) of the Marrakesh Treaty expressly requires state parties to
provide for an exception to the right of reproduction, but is silent on the right of
adaptation. This, Professor Dean submits, is confirmation that reproduction (and not
adaptation) is regarded as the relevant activity.
28 Section 1(1) of the Copyright Act states that—
“reproduction, in relation to—
(a) a literary or musical work or a broadcast, includes a reproduction in the form of a record
or a cinematograph film;
(b) an artistic work, includes a version produced by converting the work into a
three-dimensional form or, if it is in three dimensions, by converting it into a
two-dimensional form;
(c) any work, includes a reproduction made from a reproduction of that work.”
UNTERHALTER AJ
19
Second amicus curiae’s submissions
[40] MMA submits that copyrighted works of ten need to be adapted into accessible
format copies in order for them to be usable by persons with visual and print disabilities.
These accessible format copies include “digital formats that enable the use of screen
readers”, and may include “adding audi o descriptions to films and broadcasts, as well
as subtitles”. It emphasises that modifications and adjustments to original works are
required to ensure that persons with visual and print disabilities can enjoy and exercise,
on an equal basis with others, their expressive rights and freedoms.
[41] MMA submits that South Africa’s current copyright regime is in conflict with
the right to freedom of expression and access to information and that a balance must be
struck between the rights of copyright and intellec tual property owners and the rights
of all people to access and impart knowledge and ideas. According to MMA, t his
balance can be found in the remedy proposed by Blind SA, that is, the reading-in of
section 19D of the CAB.
Third amicus curiae’s submissions
[42] The ICJ submits that the Copyright Act must, in addition to the relevant
copyright regime, be interpreted in line with international human rights treaties such as
the ICESCR and the CRPD. It submits that Professor Dean’s arguments fail to consider
South Africa’s obligations in terms of international human rights law. It supports a
reading-in of section 19D as proposed by Blind SA.
Analysis
[43] The application before this Court takes the form of confirmation proceedings.
Section 167(5) of the Constitution stipulates that this Court—
“makes the final decision as to whether an Act of Parliament . . . is constitutional, and,
must confirm any order of invalidity made by the Supreme Court of Appeal [or]
High Court . . . before that order has any force.”
UNTERHALTER AJ
20
[44] Accordingly, this Court’s jurisdiction is necessarily engaged.
[45] In Phillips, 29 this Court held the following regarding conf irmation proceedings
that come before it:
“Section 172(2) confirmation proceedings are not routine , for it does not follow that
High Court findings of constitutional invalidity will be confirmed as a matter of course.
This Court is empowered to confirm the High Court order of constitutional invalidity
only if it is satisfied that the provision is inconsistent with the Constitution. If not, there
is no alternative but to decline to confirm the order. It follows that a finding of
constitutional invalidity by a High Court does not relieve this Court of the duty to
evaluate the provision of the provincial Act or Act of Parliament in the light of the
Constitution. A thorough investigation of the constitutional status of a legislative
provision is obligatory in confirmation proceedings. This is so even if the proceedings
are not opposed, or even if there is an outright concession that the section under attack
is invalid.”30 (Emphasis added.)
[46] Accordingly, this Court must conduct its own evaluation and satisfy itself as to
the constitutional validity of the provisions of the Copyright Act that have been
challenged.
The pleaded case
[47] At the outset, it is important to identify the challenge that Blind SA makes to the
constitutional validity of the Copyright Act. The pleaded case in the founding affidavit
is this: the application is brought in the public interest and on behalf of persons w ith
visual and print disabilities. This class of persons is taken to fall within the definition
of “a beneficiary person” in Article 3 of the Marrakesh Treaty. A beneficiary person is
there defined as follows:
29 Phillips v Director of Public Prosecutions [2003] ZACC 1; 2003 (3) SA 345 (CC); 2003 (4) BCLR 357 (CC).
30 Id at para 8.
UNTERHALTER AJ
21
“A beneficiary person is 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 be normally acceptable for reading;
regardless of any other disabilities.” (Footnotes omitted.)
[48] While Blind SA’s submissions reference the works eligible for copyright listed
in s ection 2 of the Copyright Act and, in general terms , the nature of copyright
protection afforded these works under the Copyright Act, it is literary works that engage
Blind SA’s concern. These works, published in print, include books, magazines,
periodicals, articles, textbooks and other educational materials. Blind SA observes that
copyright in a literary work vests the exclusive right to do or to authori se the doing of
acts set out in s ection 6 of the Copyright Act. Save for certain legislated exceptions,
the use of literary works by recourse to acts which the copyright owner has the exclusive
right to do or to authorise requires the consent of the copyright owner.
[49] Blind SA sets out the following evidence in its founding affidavit before the
High Court:
“The vast majority of books are published in print, and not in formats that are accessible
to persons with visua l (and print) disabilities. As the [ World Intellectual Property
Organization] Handbook on the Marrakesh VIP Treaty explains:
‘285 million people worldwide are blind or visually impaired. 90% of
them live on low incomes in developing and least developed countries.
Only 1-7% of books are published in a format they can read.’
. . .
According to a Statistics South Africa census conducted in 2011, 11% of
South Africa’s population lives with visual disabilities – with 1.7% living with severe
visual disabilities, and 9.3% living with mild visual disabilities.
UNTERHALTER AJ
22
. . .
Accessible formats include Braille, audio versions, or copies of published works in
large print. For electronic versions, they include digital formats that enable the use of
screen readers. They als o include adding audio descriptions to films and broadcasts,
as well as subtitles.”
[50] Given that the majority of published books are not published in accessible format
copies, that is, formats accessible to persons with visual and print disabilities, such
persons must secure authorisation to convert books into accessible format copies. This
is difficult, often impossible, to do. Absent authorisation, the rendering of a
literary work in which copyright subsists into accessible format copies would constitute
an infringement of copyright under s ection 23, and an offence under section 27of the
Copyright Act.31
[51] The result is that persons with visual and print disabilities are denied access to
the vast majority of published literary works on the basis of their di sability. The
Copyright Act is an insurmountable barrier that prevents works being locally available
in various accessible format copies.
[52] In consequence, Blind SA contends that the Copyright Act limits the entrenched
rights of persons with visual and print disabilities. The rights so limited are the rights
to equality, human dignity, basic and further education, freedom of expression, and
participation in the cultural life of one’s choice. 32 The supporting affidavits speak
trenchantly of the deprivations wrought upon persons with visual and print disabilities
by reason of the scarcity of books in accessible format copies. This, Blind SA contends,
constitutes powerful evidence of the infringement of these rights.
[53] Mr Low is blind . He edits Spotlight, a publication of public interest health
journalism. He describes his own university education in which accessible format
31 These sections set out under which circumstances copyright will be infringed (section 23) and stipulate the
penalties and proceedings in respect of dealings which infringe copyright (section 27).
32 Sections 9, 10, 16, 29 and 30 of the Constitution.
UNTERHALTER AJ
23
copies of books in the university library were often not available because authorisation
from copyright owners could not be obtained. He describes the book famin e
experienced by persons with visual and print disabilities. Even where books are
available in a format somewhat accessible to these persons, one such format may not be
converted into another that is best suited to the user, without authorisation. This is of
particular concern in respect of technical books. Mr Low also references the importance
of an American non -profit library servi ce, Bookshare, that has a local library , but
cross-border distribution requires permission from copyright owners.
[54] To like effect, Mr Gama, a teacher at a school for the deaf and the blind, describes
how many special schools across the country struggle to obtain sufficient textbooks in
accessible format copies. Apart from textbooks, there are often few books available to
many learners who are blind. This clearly disadvantages these learners and impairs
their dignity. After learners leave school, their position is often worse still, lacking the
assistance their schools were able to offer.
[55] Finally, Justice Yacoob, a retired judge of this Court, blind since infan cy,
describes the plight of poor people with a visual disability who cannot afford to buy
books. He says this:
“My own experience tells me that it is impossible to express in words how urgent this
is. The best I can do is say that every day that the present Copyright Act prevails in the
form in which it is, literally thousands of blind and visuall y impaired people are
deprived of reading material, and the prejudice to them is in fact irreparable,
incalculable, and very difficult to put into words. I would suggest that even without it
being put into words, the prejudice is obvious.”
[56] Blind SA goes on to explain that the limitation of rights that the Copyright Act
brings about cannot be justified in terms of section 36 of the Constitution. The deponent
then sets out the relief that is sought. First, Blind SA contends that we should declare
the Copyright Act inconsistent with the Constitution to the extent that: (a) it limits
and/or prevents persons with visual and print disabilities accessing works under
UNTERHALTER AJ
24
copyright that persons without such disabilities are able to access; and/or (b) it 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. Second, suspending the operation of the declaration of
unconstitutionality for a period of 12 months. Third, to order “a reading-in remedy”
that would deem the proposed s ection 19D, formulated in clause 20 of the CAB,
presently before Parliament, to form part of the Copyright Act. That deeming would
hold good for the 12-month period afforded to Parliament to remedy the constitutional
defect, failing which, the incorporated section 19D would continue to apply. That relief
was amended somewhat by the High Court, as I have indicated.
[57] Blind SA justifies this relief on the basis that those whose rights are infringed by
the Copyright Act require an immediate remedy. They should not be required to wait
for Parliament to pass into law the remedial provisions that would cure the constitutional
inconsistency of the Copyright Act identified by Blind SA. Nor should that remedial
intervention have to await the broader reformation of the Copyright Act, so long
delayed in Parliament. Rather, the proposed reading-in of section 19D would serve the
remedial purpose of giving immediate relief to persons with visual and print disabilities.
Blind SA observes that s ection 19D was not identified by the President, when he
referred the CAB back to Parliament, as giving rise to constitutional concerns. This
remedial regime would then permit Parliament to do its work to pass into law the CAB,
and provide the basis for South Africa’s accession to the Marrakesh Treaty, but with
immediate relief to those with visual and print disabilities.
[58] Having considered the submissions and the relief sought f rom this Court, the
following issues require consideration:
(a) What case was pleaded by Blind SA?
(b) Is the reproduction of a literary work sufficient to convert the work into
an accessible format copy for the use of persons with print or visual
disabilities, or is an adaptation of the work also required?
UNTERHALTER AJ
25
(c) Does section 13 of the Copyright Act cure the constitutional defects of
the Act that Blind SA has raised, and if not, would a reading-in of the
proposed section 19D do so?
(d) Is section 19D, if it were to be read-in, a remedy that extends beyond the
pleaded case, and if so, what remedy should be granted?
[59] I have set out the challenge made by Blind SA and the relief that it seeks in some
detail. I do so to draw attention to the issues that this case raises and those that it does
not.
[60] First, the case advanced concerns literary works. It does not traverse access to
other works eligible for copyright. The complaint is the scarcity of published
literary works in accessible format copies for the use of persons with visual and print
disabilities. That scarcity is attributable to the difficulty in securing the required
authorisation of the owners of copyright in literary works so as lawfully to render these
works into accessible format copies.
[61] Second, no case is made out as to the need for access to unpublished
literary works. There is mention made by Mr Low of the need to comply with the
Copyright Act so as to import books in accessible format copies from abroad, and in
particular from Bookshare in the United States. But no case is made out as to precisely
how the Copyright Act prevents or hampers the importation of books in accessible
format copies into the country, nor, more generally, how distribution within the country
is affected. The founding affidavit does not traverse s ection 23(2)(a) of the
Copyright Act33 which concerns infringement of copyright by any person who imports
an article into the Republic for a purpose other than for his (the statutory language)
private and domestic use. Nor does it do so in respect of s ection 23(2)(c) which
33 Section 23(2)(a) of the Copyright Act states that—
“copyright shall be infringed by any person who, without the licen ce of the owner of the
copyright and at a time when copyright subsists in a work: (a) imports an article into the
Republic for a purpose other than for his private and domestic use.”
UNTERHALTER AJ
26
concerns distribution in t he country.34 Both provisions have carve outs, the impact of
which is unexamined in the founding affidavit. How the Copyright Act restricts imports
and distribution and how such restrictions infringe upon the rights of persons with visual
and print disabilities is so undeveloped in the founding affidavit that no case can be said
to have been made out on this score.
[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 litera ry 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 dela y. Nor does Blind SA question the
legality of the Government’s approach to amend the Copyright Act to give effect to the
Marrakesh Treaty, as a precursor to its ratification . Mr Low explains how the
ratification of the Marrakesh Treaty would increase the number of books available to
persons with visual and print disabilities. That may be so , b ut how the
Marrakesh Treaty is best domesticated is a matter for Parliament and not for this Court.
[63] The case before us is thus a challenge to the Copyright Act on the basis that the
exclusive rights of copyright owners require the authorisation of these owners before
original published literary works may be made into accessible format copies for the use
of print and visually impaired persons. That requirement, it is contended, infringes the
identified rights of these persons. If we should confirm that this is so, then we are bound
to decide what remedy is required, and what remedy may be just and equitable, to cure
this infringement of rights. Our remedial remit , however, does not go beyond the
challenge that has been made.
34 Section 23(2)(c) of the Copyright Act states that—
“copyright shall be infringed by any person who, without the licence of the owner of the
copyright and at a time when copyright subsists in a work distributes in the Republic any article
for the purposes of trade, or for any other purpose, to such an extent that the owner of the
copyright in question is prejudicially affected.”
UNTERHALTER AJ
27
Infringement and section 13 of the Copyright Act
[64] It was common ground between the parties that, apart from the dispute as to what
section 13 of the Copyright Act permits or requires the Minister to do , the exclusive
rights conferred upon owners of copyright that subsist in literary works has drastically
restricted the availability of literary works in accessible forma t copies for the use of
print and visually disabled persons. That is so because, on the undisputed evidence
before us, the obligation to secure the authorisation of the owners of the copyright in
literary works to make published literary works available in accessible format copies
(the requirement of authorisation) has led to a scarcity of such works. Whether this
comes about because authorisation is declined or on account of the difficulty and delay
in identifying those from whom authorisation is required matters not. The effect is the
same. Print and visually disabled persons struggle to access literary works in accessible
format copies. Sometimes particular literary works are not available ; sometimes the
format is not optimal. More often, and particularly for poor persons in this class, the
scarcity is absolute, and few works are available at all.
[65] It takes little imagination to appreciate what that scarcity, relative or absolute,
does for the life chances of those with print or visual disabilities. That some have
nevertheless achieved substantial success is testament to their personal fortitude. It
detracts not at all from the reality that those with print and visual disabilities suffer from
a scarcity of access to literary works that persons without these impairments do not.
[66] This scarcity goes to the heart of the constitutional challenge that Blind SA
brings before this Court. The protection that the Copyright Act affords owners of
copyright in literary works gives rise to a sharp disparity between those with print and
visual disabilities, and those who do not suffer these impairments. Whatever limitations
the exclusive rights conferred by the Copyright Act may cause to those without
disabilities who would access literary works, they bear no comparison to the
deprivations suffered by those with print and visual disabilities. The rights to
incorporeal property that the Copyright Act protects may not become an instrument to
disadvantage a class of persons who have the same need to have access to literary works
UNTERHALTER AJ
28
that persons without impairments enjoy. The requirement of authorisation leads to the
scarcity of literary works in accessible format copies. That is unfair discrimination on
the grounds of disability that section 9(3) of the Constitution prohibits.
[67] The same conclusion is reached in this way. Legislation that protects the rights
of copyright owners must take account of the differential impacts of such protection
upon different classes of pe rsons. In this case, how the requirement of authorisation
bears upon the access that persons with print and visual disabilities have to
literary works in comparison to the access enjoyed by persons without these disabilities.
Where those with print and v isual disabilities suffer great and particular hardship by
reason of the requirement of authorisation , the requirement cannot be applied as if all
persons who need access to literary works are similarly situated, when they are not.
[68] This reflects a broader principle of some import. Sometimes, for the state to
avoid unfair discrimination, it must treat people in the same way or make available the
same entitlements. But sometimes what is required of the state is to recognise the
differences between persons and to provide different or more favourable treatment to
some, so as to secure non -discriminatory outcomes for all. This may appear
paradoxical, but it is not, and cases of persons with disabilities well illustrate this
principle. Well-known examples are these: a person in a wheelchair needs a ramp to
access a public health clinic and a blind person needs a means by which they might
know when it is safe to cross the road at a traffic light.
[69] The same is true in the case before us. The requirement of authorisation protects
the rights of owners of copyright in literary works. Parliament has decided that this
protection is warranted. But this does not mean that the requirement of authorisation
can be applied without regard to the impact of the requirement upon different classes of
persons. To apply the requirement to all is to expose those with print and visual
disabilities to the damaging scarcity of literary works. That constitutes unfair
discrimination and hence the Copyright Act , to avoid this discrimination, must apply
UNTERHALTER AJ
29
the requirement of authorisation with due regard to the differential effect of the
requirement upon those with print and visual disabilities.
[70] For these reasons , I find that the requirement of authorisation in the
Copyright Act would constitute unfair discrimination on the grounds of disability, and
thus infringes section 9(3) of the Constitution . The enactment fails to take account of
the effect of the requirement of authorisation upon persons with print and visu al
disabilities.
[71] For like reasons, the challenge made by Blind SA on the basis of the right to
human dignity in terms of section 10 of the Constitution is well founded. Access to the
vast universe of knowledge and imagination that is to be found in literary works is a
condition for advancement. It also promotes an engagement with the world of ideas ,
and that is an important attribute of the well-being of persons. That those with print and
visual disabilities should be so radically compromised in th e access they enjoy to
literary works by reason of the requirement of authorisation is to heap indignity upon
the adversities these persons face. The requirement of authorisation thus infringes the
right to dignity in section 10 of the Constitution.
[72] So too, persons with print and visual impairments have their rights to freedom of
expression, and in particular the freedom to receive and impart information in terms of
section 16(1)(b), infringed by the requirement of authorisation. The evidence before us
shows that the requirement of authorisation drastically limits access to literary works,
impairs the freedom to receive information, and thus, in turn , to impart information.
The requirement also limits the participation of persons with print and visual disabilities
in the cultural life of their choice. Literary works are an important source of cultural
life. When access to literary works is limited , so too are persons affected by this
limitation compromised in their enjoyment of the right to participate in the cultural life
of their choice. Section 30 of the Constitution is thus also infringed by the requirement
of authorisation.
UNTERHALTER AJ
30
[73] Finally, the evidence marshalled by Blind SA establishes that those with print
and visual disabilities struggle to secure books in accessible format copies that they
require for their education. Children, and especially poor children, cannot secure the
textbooks they require. Others who are admitted to university cannot access the articles
and books they need, a substantial impairment to the benefits of a higher education. The
right of persons with print and visual disabilities to basic education , as set out in
section 29(1)(a) of the Constitution, is thus plainly infringed. That is also so in respect
of the ri ght to further education protected in terms of s ection 29(1)(b) of
the Constitution. Although this right is to be made progressively available and
accessible by the state through reasonable measures, there can be little doubt that the
relaxation of the requirement of authorisation in favour of persons with print and visual
disabilities is a reasonable measure that the state can and must take.
[74] In sum, I find that, subject to what follows as to the powers of the Minister to
permit the reproduction of litera ry works in terms of s ection 13 of the Copyright Act,
the constitutional rights of persons with print and visual impairments in terms of
sections 9(2),35 10, 16(1)(b),36 29(1)(a) and (b) 37 and 3038 have been infringed by the
requirement of authorisation in the Copyright Act as it applie s to make published
literary works available to persons with print and visual disabilities in accessible format
copies. No case was advanced by the Minister to show that the limitation of rights is
justified. Indeed, the Minister did not oppose the application in the High Court, nor
before us.
35 Section 9(2) states:
“Equality includes the full and equal enjoyment of all rights and freedoms. To promote the
achievement of equality, legislative and other measures designed to protect or advance persons,
or categories of persons, disadvantaged by unfair discrimination may be taken.”
36 Section 16(1)(b) states that “[e] veryone has the right to freedom of expression, which includes freedom to
receive or impart information or ideas”.
37 In terms of section 29(1)(a) and (b)—
“[e]veryone has the right (a) to a basic education, including adult basic education; and (b) to
further education, which the state, through reasonable measures, must make progressively
available and accessible.”
38 Section 30 states that “[e]veryone has the right to use the language and to participate in the cultural life of their
choice, but no one exercising these rights may do so in a manner inconsistent with any provision of the Bill of
Rights”.
UNTERHALTER AJ
31
[75] Professor Dean submits that section 13 of the Copyright Act saves the statute
from constitutional invalidity. His argument is this: section 39 of the Copyright Act
provides that the Minister may make regulations as to any matter required or permitted
by the Act to be prescribed by regulations. One such matter is set out in section 13. As
stated above, i n terms of s ection 13, in addition to reproductions permitted by the
Copyright Act, reproduction of a work shall also be permitted as prescribed by
regulation. Reproduction pursuant to these regulations may not be in conflict with the
normal exploitation of the work, nor unreasonably prejudicial to the legitimate interests
of the owner of copyright. The Minister’s power to regulate under s ection 13 is thus
bounded by these strictures. Professor Dean contends that s ection 13 empowers and
requires the Minister to promulgate reg ulations that would permit of the reproduction
of literary works into accessible format copies for persons with print and visual
disabilities.
[76] Under the guidance of this Court’s decisions in Hyundai39 and Fraser,40 we are
urged by Professor Dean to interpret the Copyright Act, if such an interpretation is
reasonably possible, to be in conformity with the Constitution, so as to give best effect
to the rights at issue. Such an interpretation is possible , Professor Dean submits, for
two reasons. First, the meaning of reproduction under the Copyright Act permits of
sufficient amplitude to allow literary works to be rendered into accessible format copies
for the use of persons with print and visual disabilities. Second, section 13, read with
section 39, confers a power that the Minister must exercise in the face of the plight of
those with print and visual disabilities. But in any event, any doubt on this score may
be cured by a mandatory order of this Court requiring the Minister to promulgate
regulations.
39 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distibutors (Pty) Ltd: In re Hyundai
Motor Distributors (Pty) Ltd v Smit NO [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 at
para 23.
40 Fraser v Absa Bank Ltd [2006] ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) at para 47.
UNTERHALTER AJ
32
[77] Blind SA takes issue with the contentions of Professor Dean. It does so on two
principal grounds. First, to render literary works into accessible format copies requires
more than reproduction, it also requires adaptation. Second, to interpret s ection 13 as
Professor Dean urges us to do , would amount to an impermissible delegation of an
original legislative power. Blind SA also submits that the regulatory power conferred
on the Minister does not extend to the import and export of accessible form at copies,
the distribution of these copies, nor the problem of unpublished works. These additional
concerns, however, do not arise for our consideration because, as my analysis of the
pleadings demonstrates, they formed no part of a properly form ulated challenge to the
Copyright Act by Blind SA.
[78] I consider first the scope of the power conferred by section 13. That power must
be understood within the scheme of the Copyright Act. Section 2 provides that
literary works, if they are original, are eligible for copyright, subject to the provisions
of the Copyright Act. A literary work is defined in s ection 1. It includes, irrespective
of literary quality and in whatever mode or form expresse d novels, dramatic works,
textbooks and articles, lectures, diction aries, tables and compilations, including
compilations of data stored or embodied in a computer or a medium used in conjunction
with a computer. A literary work does not however include a computer program .
Section 6 specifies the nature of copyright in l iterary works. Copyright vests the
exclusive right to do or to authori se the doing of the listed acts. Those acts include
reproducing the work in any manner or form and making an adaptation of the work.
[79] Of importance to the interpretation of s ection 13 is to d istinguish reproduction
and adaptation, and to determine what it means to reproduce a literary work. This is so
because section 13 confers a power, by way of exception, to permit of the reproduction
of a work. The power under s ection 13, as an exception, cannot permit what the
Copyright Act does not otherwise prevent.
[80] The Copyright Act does not provide a comprehensive definition of reproduction
or adaptation. The definitions state what these concepts include. But what reproduction
UNTERHALTER AJ
33
and adaptation mean and the distinction between these acts is not exhausted by their
statutory definitions in section 1 of the Copyright Act. In Media 24,41 to “reproduce”
within the meaning of the Copyright Act was held to mean “to copy”, and—
“in order for there to have been an infringement of the copyright in an original work it
must be shown that (i) there is sufficient objective similarity between the alleged
infringing work and the original work, or a substantial part thereof, for the former to
be properly described, not necessarily as identical with, but as a reproduction or copy
of the latter; and (ii) that the original work w as the source from which the alleged
infringing work was derived.”
[81] Professor Dean has emphasised the wording of s ection 6(a) which states
“[r]eproducing the work in any manner o r form”.42 As to an adaptation of a
literary work, that, in part , is to be understood by reference in the definition of
adaptation in section 1 to “a translation of the work”.
[82] What then distinguishes the act of reproducing a literary work from making an
adaptation of the work? Professor Dean submits that the distinction is this: reproducing
a literary work is to take the work and make a transcription of it into another form at,
without changing its content. Making an adaptation of a literary work requires some
creative or interpretative engagement with the text , the consequence of which changes
the content of the work.
[83] The exact boundary between the reproduction and adaptation of a literary work
is hard to draw. We know that the translation of a literary work, by definition, is an
adaptation. That assists us to understand what makes an adaptation distinctive.
Language is not simply made up of words that signify identifiable and distinctive things
in the world. We well know this as lawyers. The very exercise upon which I am
engaged is an effort to arrive at the meaning of a concept. Within a language
41 Media 24 Books (Pty) Ltd v Oxford University Press Southern Africa (Pty) Ltd [2016] ZASCA 119; [2016] JOL
36649 (SCA) at para 12.
42 Emphasis added.
UNTERHALTER AJ
34
community, there are shades of meaning , and differences that arise as to what a text
means. This is all the more so when we translate a text from one language into another.
Observe, for example, the stark differences between modern translations of classical
texts, and those that were rendered in earlier periods.
[84] What this illustrates is that a content-based distinction between reproduction and
adaptation will not always be definitive. When words are changed in a text , in an act
of plagiarism, we might want to conclude that the text is nevertheless a copy because
there remains sufficient objective similarity, and hence the work is a reproduction.
However, its content has, in some measure, also been changed. An adaptation that is a
translation is not merely a copy because there is an interpretative engagement with the
text so as to render its meaning.
[85] It will be apparent that these are fine grained distinctions, and they are more
easily applied in concrete cases of infringement. Here we are asked to decide whether
the power to make regulations to permit of the reproduction of literary works can save
the Copyright Act from constitutional invalidity. In this endeavour we are greatly
constrained. I grant that, as Professor Dean has submitted, the transcription of a
literary work that is simply a copy of the text into another format would qualify as a
reproduction. An example of this is a book in a hard copy edition that is converted into
an electronic copy. But the issue before us is whether the rendering of literary works
into accessible format copies for the use of persons with print and visual disabilities is
also a process of copying a literary work into another format, and no more.
[86] On the papers before us, this issue received little attention. This came about, so
Blind SA pointed out, because Professor Dean made his intervention before this Court,
and not in the High Court. That may be so, but neither Blind SA nor Professor Dean
have placed much evidence before us as to the accessible format copies used by persons
with print and visual disabilities, the te chnology used to create these formats , and
whether these formats more closely resemble translations or transcriptions that are in
UNTERHALTER AJ
35
effect copies. Much was said in argument before us on this score. However, argument
is not evidence.
[87] We were left at the oral hearing debating with counsel whether braille is a
language and whether the transcription of a text into braille is akin to translation from
one language into another. Other questions arose as to the rendering of a two
dimensional work into three dimensions; how graphs, tables, histograms, and pie charts
in textbooks and technical articles are rendered into accessible format copies, and
whether this might require a textual description, and if so whether this amount s to an
adaptation. Blind SA raised the issue as to whether a shift of format that required the
written description of a photograph or a picture in a book was not an adaptation. So
too, books (including e -books) may include a variety of multi -media presentations.
While these may amount to artistic works within a literary work, the issue remains as
to whether pictures, photographs, and other multi-media presentations can be rendered
in accessible format copies by merely reproducing them. This does not seem possible.
The form in which such content appears requires some translation, indeed
transformation that requires interpretation and an effort to render the meaning in another
accessible format. Additionally, what of the conversion of a written text into an audio
format? Counsel for Blind SA and Professor Dean were, unsurprisingly, not in
agreement as to whether the use of these accessible format copies amounted to
reproducing the original work or adapting it.
[88] These disagreements are not capable of definitive resolution on the evidence
before us. But they illustrate a point of overarching significance for the use to which
the regulatory power in section 13 can be put. It is common ground that the right of a
copyright owner under the Copyright Act to authorise the reproduction or adaptation of
a literary work should not prevent the access of literary works in accessible format
copies to print and visually disabled persons. That is the constitutional infirmity that
must be cured. There are many varieties of literary work, as the definition in section 1
of the Copyright Act makes plain. The layout of these works permits of numerous
permutations. The graphical representations or multi-media presentations that they may
UNTERHALTER AJ
36
contain are many and varied. The technologies that are used to render literary works in
accessible format copies are developing and provide different solutions for different
impediments.
[89] What this means, as the final sentence of Article 4(1)(a) of the Marrakesh Treaty
provides is that “[t]he limitation or exception provided in national law should permit
changes needed to make the work accessible in the alternative format”. The exposition
of the examples described above indicate s that this can not, with any measure of
certainty, invariably take place by way of reproducing literary works (with their
inclusion of artistic works) , no matter how generously that term is reasonabl y
interpreted. It may well be that some accessible format copies reproduce the very
content of the original work, and no more. But others require latitude to use adaptation
to best render the work in an accessible format. There is no justification to reason that
accessible format copies must be restricted to reproducing original literary works so as
to permit section 13 to save the Copyright Act from constitutional invalidity. Quite the
opposite is true. Those who serve the interests of persons with print and visual
disabilities should be given the greatest latitude to produce literary works in accessible
format copies and to develop technologies to do so that are ever better at rendering the
original work in the best possible way, tailored to the varied incidents of the
impairments such persons suffer. That requires, as a matter of probability, the freedom
to make adaptations and not merely reproductions.
[90] Once that is so, the power conferred upon the Minister in s ection 13 cannot
adequately serve to cure the constitutional invalidity of the Copyright Act that I have
identified. It follows that Professor Dean’s defence of the constitutional validity of the
Copyright Act cannot prevail. The statutory right conferred upon copyright owners to
authorise the reproduction and adaptation of original literary works (and their inclusion
of artistic works) gives rise to the scarcity of literary works in accessible format copies
for those with print and visual disabilities, thereby infringing their constitutional rights.
The remit of section 13 is confined to the reproduction of a work. That limitation does
UNTERHALTER AJ
37
not secure the freedom that ma y be required to ensure that works are made accessible
in the variety of formats that will best serve those with print and visual disabilities.
Remedy
[91] Section 172(1)(a) of the Constitution requires us to declare that any law or
conduct that is inconsistent with the Constitution is invalid to the extent of its
inconsistency. I have found that provisions of the Copyright Act are inconsistent with
the Constitution. The extent to which this is so, is the first issue to which I now turn.
[92] The High Court, on this aspect of the matter, made the following order:
“The Copyright Act 98 of 1978 is declared unconstitutional in terms of section 174(1)
of the Constitution, 1996.” (Emphasis added.)
[93] As Blind SA correctly observes, this order neither references the correct
provision of the Constitution in terms of which an order of this kind is made, nor does
it specify the extent of the inconsistency with the Constitution. Blind SA prays for an
order to cure these defects in the following terms:
“The Copyright Act is inconsistent with the Constitution of the Republic of
South Africa, 1996 to the extent that it—
2.1 limits and/or prevents persons with visual and print disabilities accessing works
under copyright that persons without such disabilities are able to access; and
2.2 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 to Facilitate Access to Published Works
for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled;
and in so doing, unreasonably and unjustifiably limits the rights of persons with visual
and print disabilities to equality, dignity, freedom of expression, and basic and further
education, and to participate in the cultural life of their choice.”
UNTERHALTER AJ
38
[94] The proposed order is too wide and, in some respects, imprecise. It is too wide
for four principal reasons. First, it references all works under copyright. The case that
Blind SA has made out concerns literary works, and, to an extent , artistic works that
may form part of a literary work . Second, it would declare that the omissions of the
Copyright Act fail to measure up to what the Marrakesh Treaty requires to enable
persons with visual and print disabilities to have access to published works. The
Marrakesh Treaty is not the standard against which inconsistency for the purposes of
section 172(1)(a) is measured. Third, the proposed order stipulates for the declaration
of invalidity of the Copyright Act , without identifying the provisions of the
Copyright Act that are inconsistent with the Constitution. Fourth, it fails to specify that
the order applies to published works. No case was made out for infringements in respect
of unpublished works.
[95] As to the imprecision of the proposed order, it does not define what is meant by
persons with visual and print disabilities; and it references what “access to works under
copyright” means by invoking the Marrakesh Treaty. The Marrakesh Treaty is a
detailed remedial regime and has much value, but access requires some definitional
precision.
[96] To formulate an order that is responsive to the case that Blind SA has established
before us, the following element s should feature in the order. The Copyright Act is
inconsistent with the Constitution in that sections 6 43 and 7 44 confer on the
copyright owner the right to do or authorise the doing of reproducing, in any manner or
form, and the making of an adaptation of a literary work. This right limits persons with
visual and print disabilities from accessing accessible format copies of published
literary works and such artistic works as may be included in thes e literary works. It
does so by rendering such persons liable for infringement of copyright under section 23,
43 Section 6 provides a list of actions that a copyright owner is vested with the exclusive right to do or authorise
in respect of literary and musical works.
44 Section 7 provides a list of actions that a copyright owner is vested with the exclusive right to do or authorise
in respect of artistic works.
UNTERHALTER AJ
39
absent the authorisation of the copyright owner. Furthermore, Blind SA has used the
phrase “persons with visual and print disabilities” to mean a “beneficiary person” as
defined in Article 3 of the Marrakesh Treaty. The adoption of that definition is useful,
but it should be reflected in the order for the sake of clarity.
[97] I have thus framed an order that covers this ground. This portion of the order
will then read as follows:
“(2) It is declared that sections 6 and 7, read w ith 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 m ay be included in
such literary works, in accessible format copies.
(3) A person with a visual and print disability described in paragraph 2 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.”
[98] As to this Court’s competence to make an order that is just and equitable in terms
of section 172(1)(b) of the Constitution, there was considerable contestation before us.
The High Court suspended the declaration of invalidity for a period of 24 months to
afford Parliament an opportunity to correct the defect. However, t he High Court’s
declaration of inva lidity had no force , pending confirmation by this Court, and
consequently, there was nothing for the High Court to suspend. That error is
uncontroversial. However, Blind SA sought to persuade us that this Court should not
UNTERHALTER AJ
40
order a suspension of any declaration of invalidity that it might make, but should rather
order that section 19D, presently before Parliament as clause 20 of the CAB, should be
“read-in” to the Copyright Act, with immediate effect. Professor Dean marshalled
reasons why we should not do so. He favoured regulations that the Minister should be
required to promulgate. I do not consider that section 13 of the Copyright Act, for the
reasons given, saves the Act from constitutional invalidity. Whether the draft
regulations proposed by him ha ve any residual remedial utility is a matter to which I
shall return.
[99] This Court has had occasion to effect an interim reading-in remedy that enlarged
the reach of a statutory offence so as to extend the protection of legislation that was
otherwise constitutionally defective.45 In AmaBhungane,46 this Court went further still.
It weighed the need for an effective interim remedy and the need to respect the
separation of powers. It concluded that the egregious and intrusive violation of privacy
rights required immediate redress and ordered that during the period of suspension, an
additional and extensive provision would be deemed to be included in the Regulation
of Interception of Communications and Provision of Communication – Related
Information Act47 (RICA).
[100] Blind SA urges us to follow suit , and to deem section 19D to form part of the
Copyright Act. Blind SA makes the following submissions. First, s ection 19D is
Parliament’s answer to the constitutional defect that we have confirmed. It remains so.
Second, section 19D was not the subject of presidential concern that led the President
to send the CAB back to Parliament. Finally, section 19D is Parliament’s effort to bring
the Copyright Act in line with the Marrakesh Treaty. Neither the Speaker of the
National Assembly, nor the Minister opposes the reading-in that is sought by Blind SA.
To the extent that section 19D requires supplementation, this Court may do so, not least
45 Centre for Child Law v Media 2 4 Ltd [2019] ZACC 46; 2020 (4) SA 319 (CC); 2020 (3) BCLR 245 (CC) at
paras 114-126.
46 AmaBhungane Centre for Investigative Journalism NPC v Minister of Justice and Correctional Services [2021]
ZACC 3; 2021 (3) SA 246 (CC); 2021 (4) BCLR 349 (CC) at paras 136-149.
47 70 of 2002.
UNTERHALTER AJ
41
by recourse to the Marrakesh Treaty. Should Parliament in due course wish to amend
section 19D in whatever legislation finally emerges from the wider parliamentary
endeavour to amend the Copyright Act, the order of this Court would not prevent
Parliament from doing so.
[101] Professor Dean points out some of the hazards that attach to t he reading-in of
section 19D. First, section 19D is not uncontroversial, and this Court should exercise
care, in effect, to legislate in such circumstances. More especially when the provision
to be read -in is not a narrow alteration of a statutory regime. Second, section 19D is
incomplete and does not define terms of importance; these include “works”, “accessible
format copy”, “person with disability” and a person who “serves persons with
disabilities”. According to Professor Dean, borrowing from the Marrakesh Treaty will
not cure the problem because it leads to legislative incoherence. Third, section 19D
requires the Minister to prescribe by regulation who is a person that serves persons with
disabilities. Therefore, s ection 19D requires subordinate legislation, and hence its
adoption, without more, cannot take place. Finally, section 19D is at odds with the
Marrakesh Treaty.
[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 . This is so because the remedy that is
required fits into a larger legislative design as to how to domesticate the
Marrakesh Treaty and harmonise the exceptions that are required with the project under
consideration to revise the Copyright Act. This is a matter properly left to Parliament.
A reading-in by this Court should not deter Parliament from its ultimate task to cure the
constitutional defect we have found and integrate a remedy into the wider reformation
of the Copyright Act. The decla ration of invalidity should thus be suspended for a
UNTERHALTER AJ
42
period of 24 months to permit Parliament to complete its work. During the period of
suspension, interim relief must be afforded to persons with print and visual disabilities.
A reading-in is thus warranted. The question is what should this reading-in contain?
[103] A reading -in remedy must be carefully tailored to address the constitutional
defect that has been established. To do more is to trespass upon the constitutional
powers of Parliament. Courts are not elected. Their constitutional mandate is to provide
an effective remedy that cures a specific defect. Remedial ambitions beyond this remit
make of the courts Olympians, which they , assuredly, are not. Blind SA’s ambitious
prayers for relief well ill ustrate how its justified concern for parliamentary delay
translate into expansive remedial claims as to what this Court can and should do. Such
claims are to be assessed with care, indeed caution.
[104] I reiterate the case Blind SA brought to this C ourt. The challenge concerns
published literary works, and, with some generous latitude, artistic works that may form
part of a literary work. It focuses upon the rights of copyright owners to authorise the
rendering of such works into accessible format copies for the use of persons with print
and visual disabilities. Blind SA does not make out a case in respect of unpublished
works; nor as to the importation and export of literary works in accessible format copies;
nor as to the domestic legal regime that woul d be required to ensure reciprocity under
the Marrakesh Treaty to facilitate imports of such works; nor, more generally, as to how
best to domesticate the Marrakesh Treaty so as to permit South Africa to ratify this
treaty; nor as to how the distribution of these works should best be permitted for persons
with print and visual disabilities. These matters were addressed, in part, in argument,
and particularly in the contentions advanced as to remedy. But a case cannot be reverse
engineered from remedy to r ights. The remedy must cure the infringements of rights
that have been established.
[105] Once the ambit of the case is properly demarcated, the wholesale adoption of
section 19D cannot be ordered as interim relief. It covers grounds beyond the challenge
established by Blind SA. It is legislation intended to permit South Africa to ratify the
UNTERHALTER AJ
43
Marrakesh Treaty. Whether it does so adequately is beyond the bounds of the case
before us. At best, we may permissibly look to the text of section 19D, the relevant
provisions of the Marrakesh Treaty , and the pro posed regulation that Professor Dean
has framed to determine what relief will be effective, in the interim, to cure the scarcity
of published literary works in accessible format copies available to persons with print
and visual disabilities that is caused by the requirement of authorisation. That must be
done in such a way so as to respect the rights of copyright owners that are not implicated
in constitutional infringement, whilst providing an effective remedy to cure the
identified infringement of rights.
[106] The interim relief must contain the following:
(a) First, the subject of the exception is published literary works, and
artistic works forming part of t hese works , that are the subject of
copyright under the Copyright Act.
(b) Second, those who are to benefit from the exception must be defined .
There is good reason to adopt the definition of beneficiary persons in the
Marrakesh Treaty, as Blind SA has done.
(c) Third, it i s necessary to define the scope of the exception, and, in
particular, what it means to permit the making of an accessible format
copy. The CAB’s definition is somewhat truncated . Professor Dean’s
proposed regulation offers a definition that is limited to reproduction,
which I have found to be too restrictive. Again, the Marrakesh Treaty
provides a definition of “accessible format copy” that is sufficiently broad
to take account of the variety of content and technologies that may be used
to give beneficiary persons access that is feasible and comfortable. The
definition also recognises the rights of the copyright owner to have the
integrity of the original work respected.
(d) Fourth, and further as to scope, the exception must be clear as to the right
of the copyright owner from which a derogation is permitted. It is the
right of the copyright owner to authori se the reproduction or adaptation
of the relevant works.
UNTERHALTER AJ
44
[107] Several other aspects are uncontroversial. Those who would make an accessible
format copy of a work must have lawful access to the work or a copy of it. The
conversion of the work into an accessible format copy may include any means needed
to navigate information in the accessible format, but may not introduce changes other
than those needed to make the work accessible to the beneficiary person. Accessible
format copies are supplied exclusively to be used by beneficiary persons and such
supply is undertaken on a non -profit basis. These are all re quirements formulated to
protect the rights of copyright owners and provide targeted relief.
[108] There remains one important issue for consideration as to how best to formulate
the interim relief. Plainly, persons with print and visual disabilities must be assisted by
others to have accessible format copies of the relevant works made for them. Who
should be authori sed to do so? The Marrakesh Treaty, section 19D and
Professor Dean’s proposed regulation all rely on the concept of authorised entities, that
is, entities authorised by government. This Court cannot frame an interim order that
requires the Minister to undertake what amounts to subordinate law -making. That is
something only Parliament may require of the Minister.
[109] The remedial answer may be somewhat imperfect, but it is one that endures only
until Parliament has completed its work within the period of suspension. That answer
permits not only persons who act as agents of beneficiary persons, but also entities and
institutions that provide education , instructional training, adaptive reading or
information access to beneficiary persons on a non -profit basis to make accessible
format copies. This formulation avoids the need for government authori sation. The
entity or institution must serve beneficiar y persons as one of its primary objects or
institutional obligations, and may not do so for profit. That is adequate protection for
copyright owners, at least in the interim, given the immediate imperative of ending the
scarcity of books for persons with print and visual disabilities.
[110] I have framed the interim order with these considerations in mind.
UNTERHALTER AJ
45
[111] As to costs, Blind SA has had to come to the courts to secure relief for print and
visually disabled persons. The Minister did not oppose the application but sought to
assist this Court to frame appropriate relief. The Minister did not contest th is
application of the Biowatch principle that a successful applicant that comes to court to
vindicate the rights of those who have suffered the consequences of an unconstitutional
statute may look to the state to pay its costs , even if the state has not opposed the
application. That principle is not of invariable application but, without well -founded
opposition, it should be allowed in this case.
[112] In the result, the following order is made:
1. The order of the High Court of South Africa, Gauteng Division, Pretoria
declaring the Copyright Act 98 of 1978 inconsistent with the Constitution
is confirmed to the extent provided in paragraph 2.
2. It is declared that s ections 6 and 7 , read with s ection 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.
3. A person with a visual and print disability described in paragraph 2 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
UNTERHALTER AJ
46
would normally be acceptable for reading regardless of any other
disabilities.
4. The order of the High Court is otherwise set aside, save for its order as to
costs.
5. The declaration of un constitutionality in paragraphs 1 an d 2 takes effect
from the date of this judgment and is suspended for a period of 24 months
to enable Parliament to cure the defect in the Copyright Act giving rise to
its invalidity.
6. During the period of suspension referred to in paragraph 5, the
Copyright Act shall be deemed to include the following additional
provisions:
“Section 13A Exceptions applicable to beneficiary persons
(1) For the purposes of section 13A—
(a) ‘accessible format copy ’ means a copy of a work in an
alternative manner or form which gives a b eneficiary
person access to the work, including to permit the person
to have access as feasibly and comfortably as a person
without visual impairment or other print disability. The
accessible format copy must be used exclusively by
beneficiary persons and it must respect the integrity of the
original work, taking due consideration of the changes
needed to make the work accessible in the alternative
format and of the accessibility needs of the beneficiary
persons;
(b) ‘beneficiary person’ means a person who—
(i) is blind;
(ii) 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 substanti ally the
UNTERHALTER AJ
47
same degree as a person without an impairment or
disability; or
(iii) 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;
(c) ‘literary works ’ means literary works as defined in
section 1 of this Act, and shall be taken to include
artistic works forming part of a literary work;
(d) ‘permitted entity’ means an entity, including a government
institution or non -profit organisation, that provides
education, instructional training, adaptive reading or
information access to beneficiary persons on a non -profit
basis, and has the provision of such services as one of its
primary activities or institutional obligations.
(2) A permitted entity may, without the authorisation of the owner of
copyright in a literary work, make an accessible format copy of the
literary work; obtain from another permitted entity , an accessible
format copy, and supply those copies to beneficiary persons by any
means, including non-commercial lending or by electronic
communication by wire or wireless means, and undertake any
intermediate steps to achieve those objectives, provided that all of
the following conditions are met—
(a) the permitted entity wishing to undertake said activity has
lawful access to that work or a copy of that work;
(b) the work is converted to an accessible format copy, which
may include any means needed to navigate information in
the accessible format, but does not introduce changes other
than those needed to make the work accessible to the
beneficiary person;
UNTERHALTER AJ
48
(c) such accessible format copies are supplied exclusively to
be used by beneficiary persons; and
(d) the activity is undertaken on a non-profit basis.
(3) A beneficiary person, or someone acting on their behalf, including
a primary caretaker or caregiver, may make an accessible format
copy of a work for the personal use of the beneficiary person or
otherwise may assist the beneficiary person to make and use
accessible format copies where the beneficiary person has lawful
access to that work or a copy of that work.”
7. The Minister of Trade, Industry and Competition shall pay the applicant’s
costs in this Court, including costs of two counsel.
For the Applicant:
For the First Respondent:
For the First Amicus Curiae:
For the Second Amicus Curiae:
For the Third Amicus Curiae:
J Berger, F Veriyava and T Moosa
instructed by SECTION 27
N Rajab -Budlender SC and R Tulk
instructed by State Attorney, Pretoria
I Goodman and D Linde instructed by
Adams and Adams
M Power instructed by Power Singh
Incorporated
M Z Suleman and S Mdletshe instructed
by Equal Education Law Centre