Constitutional Court declares Copyright Act unconstitutional

Does copyright protection prohibit the distribution of works in formats that are accessible to people with print and visual impairments? Our Constitutional Court had occasion to consider this important question in the recent judgment of Blind SA v Minister of Trade, Industry and Competition and Others.

In this case Blind SA brought an application challenging the constitutionality of several provisions of the Copyright Act 98 of 1978 (“Copyright Act”). Blind SA claimed that the Copyright Act restricted the conversion of works that were copyright protected to formats that made such works accessible to people with print and visual impairments.

According to the Copyright Act the creation of formats for use by people with print and visual impairments can only be done by first obtaining the copyright owner’s permission. As a result, individuals with these impairments face obstacles that others without such disabilities do not when trying to access works protected by copyright.

The Constitutional Court unanimously found in favour of Blind SA and ordered that Parliament has 24 months to address the unconstitutionality of certain sections of the Copyright Act. 

In the meantime certain exceptions would apply to those affected, namely that “permitted entities” including a government institution or non-profit organisation, that provides education, instructional training, adaptive reading or information access to beneficiary persons (including a blind person or person with a visual impairment or reading disability) on a non-profit basis, and has the provision of such services as one of its primary activities or institutional obligations, may, without the copyright owners authorisation, create, acquire, or issue accessible format copies of works protected by copyright, if certain requirements are met, such as:

  • The permitted entity wishing to undertake such an activity must have access which is lawful to either the original work or copy of that work.
  • Changes are made to ensure that the work is changed into an accessible format copy and does not implement any other changes than those required to make this work accessible to the “beneficiary person”.
  • Accessible format copies are provided solely to be used by a “beneficiary person”.
  • The activity is undertaken on a non-profit basis. 

The judgment was not opposed by Government confirming the importance of the need to improve accessibility to literary works for persons with visual or print impairments. 

Disclaimer: This article is the personal opinion/view of the author(s) and is not necessarily that of the firm. The content is provided for information only and should not be seen as an exact or complete exposition of the law. Accordingly, no reliance should be placed on the content for any reason whatsoever and no action should be taken on the basis thereof unless its application and accuracy has been confirmed by a legal advisor. The firm and author(s) cannot be held liable for any prejudice or damage resulting from action taken on the basis of this content without further written confirmation by the author(s). The permitted entity

November 22, 2022
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