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UNTERHALTER AJ 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, cinematographic 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 alternative 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 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”. 23 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 unreasonably prejudicial to the legitimate interests of the owner of the copyright.” 24 12

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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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