This is an informal case
summary prepared for the purposes of facilitating exchange during the 2022 WIPO IP Judges Forum.
Session 3: Copyright and New Technologies
Constitutional
Court of South Africa [2022]: Blind SA v Minister of Trade, Industry and
Competition and Others [2022] ZACC 33
Date of judgment: September 21, 2022
Issuing authority: Constitutional Court of South Africa
Level of the issuing authority: Final Instance
Subject matter: Copyright and Related Rights (Neighboring Rights)
Plaintiff: Blind SA
Defendants: Minister of Trade, Industry and Competition, Minister of International Relations and Cooperation, the Speaker of the National Assembly, the Chairperson of the National Council of Provinces, the President of the Republic of South Africa.
Keywords: Unconstitutional
provisions, infringement of the rights of persons with visual and print
disabilities, accessible formats.
Basic Facts: The Plaintiff, is a
non-profit organisation working for the benefit of blind people in South
Africa.
The Copyright Act grants the copyright owner the exclusive right to do or authorise the reproduction or adaptation of their literary works (requirement of authorisation).
The Plaintiff contended that the Copyright Act restricts the availability of works under copyright in formats accessible to persons with print and visual disabilities, and therefore, unfairly discriminates against them. After undue delays in the legislative process to amend the Copyright Act, the Plaintiff filed for a declaratory order from the High Court of South Africa on the unconstitutionality of the Copyright.
The High Court, on December 7, 2021, affirmed the unconstitutionality of the Copyright Act to the extent that it: (a) limits and/or prevents persons with visual and print disabilities from accessing works under copyright that persons without such disabilities are able to access; and (b) does not include provisions designed to ensure that persons with visual and print disabilities are able to access works under copyright in the manner contemplated by the Marrakesh Treaty.
Held: The Constitutional Court of South Africa (“the Court”) confirmed the High Court of South Africa decision on the constitutional invalidity of sections 6 and 7, read with section 13 of the Copyright Act 98 of 1978 for constituting unfair discrimination and violating the right of individuals with visual and print disabilities to dignity, freedom of expression, freedom to receive and impart information, to receive basic education and to participate in the cultural life of their choice, set out in sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution, by restricting the availability of literary works in adapted format copies.
The Court held that the requirement of authorisation cannot 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 the requirement of authorisation with due regard to the differential effect of the requirement upon those with print and visual disabilities.
The Court ordered interim relief including additional provisions to Section 13 of the Copyright Act for accessible format copies under “Section 13A Exceptions applicable to beneficiary persons”.
Relevant holdings in relation to copyright and new technologies: The Court noted that new technologies to adapt literary works into accessible format copies are being developed to provide tailored solutions to different impairments and should not be limited by copyright legislation against infringement.
The Court held that 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.
Relevant legislation:
Section 6, 7 and 23 of the Copyright Act 98 of 1978
Sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution of the Republic of South Africa