UNTERHALTER AJ
concerns distribution in the country.34 Both provisions have carve outs, the impact of
which is unexamined in the founding affidavit. How the Copyright Act restricts imports
and distribution and how such restrictions infringe upon the rights of persons with visual
and print disabilities is so undeveloped in the founding affidavit that no case can be said
to have been made out on this score.
[62]
Third, the failure by Parliament to pass into law the CAB, and, in particular, the
failure to legislate so as to remedy the scarcity of literary works in accessible format
copies is traversed by Blind SA to explain why it comes to the courts to seek relief,
rather than awaiting the long delayed parliamentary process. But no relief is sought to
bring under constitutional review Parliament’s delay. Nor does Blind SA question the
legality of the Government’s approach to amend the Copyright Act to give effect to the
Marrakesh Treaty, as a precursor to its ratification.
Mr Low explains how the
ratification of the Marrakesh Treaty would increase the number of books available to
persons with visual and print disabilities.
That may be so, but how the
Marrakesh Treaty is best domesticated is a matter for Parliament and not for this Court.
[63]
The case before us is thus a challenge to the Copyright Act on the basis that the
exclusive rights of copyright owners require the authorisation of these owners before
original published literary works may be made into accessible format copies for the use
of print and visually impaired persons. That requirement, it is contended, infringes the
identified rights of these persons. If we should confirm that this is so, then we are bound
to decide what remedy is required, and what remedy may be just and equitable, to cure
this infringement of rights. Our remedial remit, however, does not go beyond the
challenge that has been made.
34
Section 23(2)(c) of the Copyright Act states that—
“copyright shall be infringed by any person who, without the licence of the owner of the
copyright and at a time when copyright subsists in a work distributes in the Republic any article
for the purposes of trade, or for any other purpose, to such an extent that the owner of the
copyright in question is prejudicially affected.”
26