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

Jonathan Berger led the team that successfully represented Blind SA in confirmation proceedings before the Constitutional Court.

On 27 June 2013, member states of the World Intellectual Property Organization adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. Among other things, the Marrakesh Treaty makes provision for national copyright laws to facilitate the availability of works under copyright in accessible format copies for persons with visual and print disabilities.

Although the Marrakesh Treaty came into force on 30 September 2016, our Copyright Act has yet to be amended. An amendment bill which included provisions to give effect to the treaty was passed by Parliament on 29 March 2019. But it sat on the president’s desk for over a year. On 16 June 2020, President Ramaphosa – acting in terms of section 79(1) of the Constitution – referred the bill back to the National Assembly for reconsideration, citing various reservations regarding its constitutionality.

Recognising that the referral would result in an inordinate delay, Blind SA approached the High Court, primarily seeking to have the Copyright Act declared unconstitutional to the extent that it “limits and/or prevents persons with visual and print disabilities accessing works under copyright that persons without such disabilities are able to access”. Blind SA also sought an order reading in the provisions of the amendment bill that sought to give effect to the Marrakesh Treaty.

In large part, the High granted the order sought, after hearing argument from Blind SA, amici curiae who supported the application, and the relevant Minister (who only made submissions on remedy). When the matter came before the Constitutional Court, a new amicus curiae had joined the proceedings: a professor of intellectual property. In his view, the Act was not unconstitutional because of the existence of a section that empowers the Minister to make regulations dealing with limited exceptions.

In a unanimous judgment, the Court held that certain provisions of the Copyright Act are unconstitutional to the extent that … [they] limit the access of … persons [with visual and print disabilities] to published literary works, and artistic works as may be included in such literary works, in accessible format copies.” Although the Court did not agree with Blind SA’s proposed reading-in remedy, it did read in access provisions that will remain in force pending the enactment of the revised amendment bill.

Read the judgment here

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