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UNTERHALTER AJ [107] Several other aspects are uncontroversial. Those who would make an accessible format copy of a work must have lawful access to the work or a copy of it. The conversion of the work into an accessible format copy may include any means needed to navigate information in the accessible format, but may not introduce changes other than those needed to make the work accessible to the beneficiary person. Accessible format copies are supplied exclusively to be used by beneficiary persons and such supply is undertaken on a non-profit basis. These are all requirements formulated to protect the rights of copyright owners and provide targeted relief. [108] There remains one important issue for consideration as to how best to formulate the interim relief. Plainly, persons with print and visual disabilities must be assisted by others to have accessible format copies of the relevant works made for them. Who should be authorised to do so? The Marrakesh Treaty, section 19D and Professor Dean’s proposed regulation all rely on the concept of authorised entities, that is, entities authorised by government. This Court cannot frame an interim order that requires the Minister to undertake what amounts to subordinate law-making. That is something only Parliament may require of the Minister. [109] The remedial answer may be somewhat imperfect, but it is one that endures only until Parliament has completed its work within the period of suspension. That answer permits not only persons who act as agents of beneficiary persons, but also entities and institutions that provide education, instructional training, adaptive reading or information access to beneficiary persons on a non-profit basis to make accessible format copies. This formulation avoids the need for government authorisation. The entity or institution must serve beneficiary persons as one of its primary objects or institutional obligations, and may not do so for profit. That is adequate protection for copyright owners, at least in the interim, given the immediate imperative of ending the scarcity of books for persons with print and visual disabilities. [110] I have framed the interim order with these considerations in mind. 44

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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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