On 12 May 2022, the Constitutional Court[1] heard argument on whether it should confirm the 2021 Gauteng High Court ruling (in the matter of Blind SA v. Minister of Trade, Industry and Competition and others[2]) which declared the Copyright Act unconstitutional for not providing copyright exceptions to allow organizations representing blind and visually impaired persons to make accessible format copies of copyright works without the permission of copyright owners.
The High Court order was suspended for 24 months to allow Parliament to remedy the perceived defect in the Act. The High Court, however, also ordered that the text of Section 19D of the controversial Copyright Amendment Bill be read into law with immediate effect.
President Ramaphosa referred the Bill to the National Assembly for correction of, inter alia, Section 19D to ensure compliance with the Marrakesh Treaty, in terms of which exceptions are allowed, such as the making of accessible format copies for the blind and visually impaired persons. The SA Government indicated that it intends to accede to the Marrakesh Treaty after the Bill is enacted.
Prof. Owen Dean, one of South Africa’s renowned copyright lawyers, author of the standard textbook on copyright law in South Africa[3] and a longstanding, member of Government’s Standing Advisory Committee on Intellectual Property Law, intervened as amicus curiae in the Constitutional Court certification proceedings, arguing that the Copyright Act is not unconstitutional. The Act already provides for copyright exceptions through Ministerial regulations. [4] A draft regulation was submitted, which could swiftly be adopted for the benefit of blind and visually impaired persons, while ensuring full compliance with the Marrakesh Treaty and, unlike Section 19D, preserving authors’ right to claim authorship in the works being copied.
The Constitutional Court has reserved its judgement.
Adams & Adams acted as the attorneys for Prof. Dean in the proceedings before the Constitutional Court.
[1] Blind SA v Minister of Trade, Industry and Competition (CCT320/21).
[2] Blind SA v Minister of Trade, Industry and Competition, North Gauteng High Court, Case No. 14996/21.
[3] Handbook of South African Copyright Law (first published by Juta, 1987).
[4] Section 13 of the Copyright Act No. 98 of 1978.