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UNTERHALTER AJ not secure the freedom that may be required to ensure that works are made accessible in the variety of formats that will best serve those with print and visual disabilities. Remedy [91] Section 172(1)(a) of the Constitution requires us to declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency. I have found that provisions of the Copyright Act are inconsistent with the Constitution. The extent to which this is so, is the first issue to which I now turn. [92] The High Court, on this aspect of the matter, made the following order: “The Copyright Act 98 of 1978 is declared unconstitutional in terms of section 174(1) of the Constitution, 1996.” (Emphasis added.) [93] As Blind SA correctly observes, this order neither references the correct provision of the Constitution in terms of which an order of this kind is made, nor does it specify the extent of the inconsistency with the Constitution. Blind SA prays for an order to cure these defects in the following terms: “The Copyright Act is inconsistent with the Constitution of the Republic of South Africa, 1996 to the extent that it— 2.1 limits and/or prevents persons with visual and print disabilities accessing works under copyright that persons without such disabilities are able to access; and 2.2 does not include provisions designed to ensure that persons with visual and print disabilities are able to access works under copyright in the manner contemplated by the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled; and in so doing, unreasonably and unjustifiably limits the rights of persons with visual and print disabilities to equality, dignity, freedom of expression, and basic and further education, and to participate in the cultural life of their choice.” 37

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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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