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UNTERHALTER AJ disabilities. On 7 December 2021, the High Court delivered a judgment in which it declared the Copyright Act to be unconstitutional to the extent that it fails to make provision for exceptions that would enable, through the conversion of works, access to such works by persons with visual and print disabilities.11 The application was unopposed. [9] The High Court held that despite the alternative formats available for blind persons and those with visual and print disabilities, the Copyright Act was restrictive of the free conversion of works under copyright into alternative formats.12 This meant that the consent of copyright owners was required to convert works under copyright into formats that enabled persons with print and visual disabilities to have equal access to information. The High Court found the statutory prohibition of the free conversion of works to be discriminatory and inconsistent with section 9 of the Constitution.13 [10] Furthermore, the High Court held, that acting in accord with South Africa’s intent to ratify the Marrakesh Treaty, Parliament adopted the CAB which proposes the insertion of section 19D to create exceptions to the Copyright Act.14 [11] The High Court also considered the delay in adopting the CAB. It noted that section 19D was not the subject of controversy in Parliament. The Court found the delay to be unreasonable and contrary to section 36(1) of the Constitution as it unjustifiably perpetuates the violation of the rights of visually and print disabled persons.15 [12] Three amici curiae made submissions before the High Court, namely the ICJ, MMA and Recreate Action. The amici supported the application before the High Court. 11 Blind SA v Ministry of Trade, Industry and Competition 2021 JOL 52197 (GP) (High Court judgment) at para 28.1. 12 Id at paras 4-5. 13 Id at para 6. 14 Id at para 10. 15 Id at para 11. 9

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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

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