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UNTERHALTER AJ (c) Does section 13 of the Copyright Act cure the constitutional defects of the Act that Blind SA has raised, and if not, would a reading-in of the proposed section 19D do so? (d) Is section 19D, if it were to be read-in, a remedy that extends beyond the pleaded case, and if so, what remedy should be granted? [59] I have set out the challenge made by Blind SA and the relief that it seeks in some detail. I do so to draw attention to the issues that this case raises and those that it does not. [60] First, the case advanced concerns literary works. It does not traverse access to other works eligible for copyright. The complaint is the scarcity of published literary works in accessible format copies for the use of persons with visual and print disabilities. That scarcity is attributable to the difficulty in securing the required authorisation of the owners of copyright in literary works so as lawfully to render these works into accessible format copies. [61] Second, no case is made out as to the need for access to unpublished literary works. There is mention made by Mr Low of the need to comply with the Copyright Act so as to import books in accessible format copies from abroad, and in particular from Bookshare in the United States. But no case is made out as to precisely how the Copyright Act prevents or hampers the importation of books in accessible format copies into the country, nor, more generally, how distribution within the country is affected. The founding affidavit does not traverse section 23(2)(a) of the Copyright Act33 which concerns infringement of copyright by any person who imports an article into the Republic for a purpose other than for his (the statutory language) private and domestic use. Nor does it do so in respect of section 23(2)(c) which 33 Section 23(2)(a) 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: (a) imports an article into the Republic for a purpose other than for his private and domestic use.” 25

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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: 21 de set. de 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 Name and URL: saflii

Collection

CIPIT

Date Updated: 18 de ago. de 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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