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UNTERHALTER AJ 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 section 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 section 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 from 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? 24

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Blind SA v Minister of Trade, Industry and Competition and Others 2022

Case Law

Country

South Africa

Country Location

Latitude: -28.58043087631903

Longitude: 24.820993917210945

Country Location (linked Case Law): South Africa

Decision Date: Sep 21, 2022

Case Status: Closed

Case Outcome (Procedural)

Motion Granted

Case Outcome (Disposition)

Judgement in Favour of Plaintiff
Motion Granted

Keywords

Access to Information
Public Interest

Court Name: Constitutional Court of South Africa

Case Number: Case CCT 320/21

Case Summary: Facts

Blind SA, a South African organisation advocating for the rights of blind and visually impaired persons, brought a constitutional challenge against provisions of the Copyright Act 98 of 1978. The organisation argued that the Act unlawfully restricted the ability of blind persons to access published works in accessible formats such as Braille, audio, and large print.

Because the Act required prior authorisation from copyright holders before works could be converted into accessible formats, blind persons faced systematic barriers to accessing education, information, and culture. Blind SA contended that this regime violated several constitutional rights, including the right to equality (s 9), dignity (s 10), education (s 29), freedom of expression (s 16), and access to information (s 32).

The respondent, the Minister of Trade, Industry and Competition, opposed the petition, arguing that the Copyright Act balanced the rights of authors with public interest, and that reforms were already underway through draft legislation.

Issue

The central issue before the Constitutional Court was whether the Copyright Act’s failure to provide an express exception for the reproduction of works in accessible formats constituted an unjustifiable limitation of the constitutional rights of persons with visual disabilities.

Additionally, the Court had to determine whether it had the power to grant “reading-in” relief — namely, to modify the Copyright Act by inserting provisions that immediately allow the making and distribution of accessible format copies without requiring copyright-holder permission.

Rule

The case was decided under the Bill of Rights in the Constitution of South Africa (1996), particularly:

Section 9 (Equality): Guarantees equal protection and benefit of the law.

Section 10 (Dignity): Affirms the inherent dignity of every person.

Section 29 (Education): Ensures the right to basic and further education.

Section 16 (Freedom of Expression) and Section 32 (Access to Information): Protect access to knowledge and information.

The Court also relied on international norms, including the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, which South Africa had signed but not ratified.

Analysis

The Constitutional Court emphasised that blind and visually impaired persons had suffered decades of systemic exclusion from access to knowledge due to copyright barriers. By conditioning access on obtaining copyright-holder consent, the Act perpetuated discrimination, undermined dignity, and entrenched inequality.

The Court found that the absence of an accessible format exception in the Copyright Act was unconstitutional, as it unjustifiably limited the rights of persons with disabilities. The Minister’s argument that legislative reform was pending did not absolve the Court of its constitutional duty to grant immediate relief.

On the remedy, the Court held that reading-in was appropriate to cure the constitutional defect. The Court thus inserted provisions into the Copyright Act allowing persons with visual disabilities, or organisations acting on their behalf, to make and distribute accessible format copies of works without prior authorisation, provided this was done on a non-profit basis and solely for the benefit of persons with disabilities.

Conclusion

The Court concluded that the Copyright Act violated the constitutional rights of blind and visually impaired persons by failing to provide for accessible format exceptions. The impugned provisions were declared unconstitutional, and the Court read in new sections to immediately allow for the making, reproduction, and distribution of accessible format copies.

Case Significance: Copyright act of 1979 s 6 and s 7 declared unconstitutional.

Available in

English

Related Law

Source URL: saflii

Collection

CIPIT

Date Updated: Aug 18, 2025

Primary Documents

BLIND SA 1.pdf
English
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CYRILLA: Global Digital Rights Law

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Blind SA v Minister of Trade, Industry and Competition and Others 2022

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