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UNTERHALTER AJ [75] Professor Dean submits that section 13 of the Copyright Act saves the statute from constitutional invalidity. His argument is this: section 39 of the Copyright Act provides that the Minister may make regulations as to any matter required or permitted by the Act to be prescribed by regulations. One such matter is set out in section 13. As stated above, in terms of section 13, in addition to reproductions permitted by the Copyright Act, reproduction of a work shall also be permitted as prescribed by regulation. Reproduction pursuant to these regulations may not be in conflict with the normal exploitation of the work, nor unreasonably prejudicial to the legitimate interests of the owner of copyright. The Minister’s power to regulate under section 13 is thus bounded by these strictures. Professor Dean contends that section 13 empowers and requires the Minister to promulgate regulations that would permit of the reproduction of literary works into accessible format copies for persons with print and visual disabilities. [76] Under the guidance of this Court’s decisions in Hyundai39 and Fraser,40 we are urged by Professor Dean to interpret the Copyright Act, if such an interpretation is reasonably possible, to be in conformity with the Constitution, so as to give best effect to the rights at issue. Such an interpretation is possible, Professor Dean submits, for two reasons. First, the meaning of reproduction under the Copyright Act permits of sufficient amplitude to allow literary works to be rendered into accessible format copies for the use of persons with print and visual disabilities. Second, section 13, read with section 39, confers a power that the Minister must exercise in the face of the plight of those with print and visual disabilities. But in any event, any doubt on this score may be cured by a mandatory order of this Court requiring the Minister to promulgate regulations. 39 Investigating Directorate: Serious Economic Offences v Hyundai Motor Distibutors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO [2000] ZACC 12; 2001 (1) SA 545 (CC); 2000 (10) BCLR 1079 at para 23. 40 Fraser v Absa Bank Ltd [2006] ZACC 24; 2007 (3) SA 484 (CC); 2007 (3) BCLR 219 (CC) at para 47. 31

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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 (Lié Case Law): South Africa

Decision Date: 21 sept. 2022

Case Status: Affaire Résolue

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 Name and URL: saflii

Collection

CIPIT

Date Updated: 18 août 2025

Documents principaux

BLIND SA 1.pdf
English
Télécharger Vue

CYRILLA: Global Digital Rights Law

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

Documents principaux

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