Finding that South Africa’s Copyright Act violated the constitutional rights of persons with visual and print disabilities, South Africa’s Constitutional Court granted urgent relief by reading-in a piece of legislation that Parliament passed but was not signed by the President. This legislation makes it possible for people with disabilities to produce accessible copies of copyrighted materials without seeking permission from copyright owners.
Plaintiff Blind SA advocates for the rights and empowerment of visually-impaired persons in South Africa. In 2019, Parliament passed the “Copyright Amendment Bill” (CAB). Based on reservations about certain provisions in CAB, the President refused to assent to the Bill as is required before a Bill becomes law in South Africa and instead referred the bill back to Parliament on 16 June 2020. Because there was no legal way for visually-impaired persons to access copyrighted material without seeking permission from copyright owners, Blind SA filed an application with the High Court, challenging sections 6 and 7 of the Copyright Act as violative of sections 9(3), 10, 16(1)(b), 29(1) and 30 of the South African Constitution. In 2021, the High Court granted relief in favor of Blind SA in December of 2021 and on 21 September 2022, the Constitutional Court in Blind SA I affirmed the High Court’s decision, holding that sections 6 and 7 of the Copyright Act were inconsistent with the constitutional rights of persons with visual and print disabilities. Specifically, the Constitutional Court held that requiring copyright owners’ permission to make accessible copies of literary and print materials was a discriminatory barrier which unfairly prevented people with visual and print disabilities from accessing copyrighted materials. Notably, the Court declined to read-in “clause 19D” of the CAB, citing concerns about it being too broad, and instead read-in “section 13A,” which created exceptions in the copyright law for persons with visual and print disabilities, making it possible to legally reproduce accessible format copies of copyrighted materials without copyright owners’ permission.
The Constitutional Court’s remedy in Blind SA I was set to expire on 21 September 2024, twenty-four months after the decision, in order to give Parliament time to cure the legislative defect. On 29 February 2024 Parliament passed revised versions of the “Copyright Amendment Bill” (CAB) and submitted the bills to the President for his assent and signature in March 2024. However, the President yet again did not sign the bill into law and referred the bill to the Constitutional Court with reservations, and the remedy granted in Blind SA I expired without the promulgation of remedial legislation protecting the rights of visually-impaired persons. Starting on 21 September 2024, the expiry of the remedies in Blind SA I left a lacuna (gap) in the Copyright Act, resulting in the violation of constitutional rights of persons with visual and print disabilities.
On 8 October 2024, having received no confirmation from the President that he would sign the CAB legislation designed to fill the gap left in the Copyright Act following the expiry of the Blind SA I remedy, Blind SA filed an application for “direct access” to the Constitutional Court. Blind SA prayed for relief in the form of “section 13A” being read-in to the Copyright Act again or, alternatively, for “clause 19D” to be read-in. Because key concerns the Court had about “clause 19D” in Blind SA I had been cured in the legislature and “clause 19D,” unlike “section 13A,” included provisions mandated by the Marrakesh VIP Treaty, the Constitutional Court granted relief for Blind SA in the form of “clause 19D.” The Marrakesh VIP Treaty, inter alia, provides for cross-border sharing of accessible formats of copyrighted materials without requiring permission from copyright holders. Compatibility with the Treaty was not included in the Blind SA I remedy. “Clause 19D” will remain in effect only until the remedial legislation passed by Parliament and signed by the President comes into force. The Court ordered that the President pay the attorney’s fees of Blind SA, finding that his actions could have prevented the need for the plaintiff’s action.
The reading-in of “clause 19D” leaves no doubt that authorial consent is not required for the creation of accessible copies of copyrighted materials. Further, it comports with the requirements of the floor provided by the Marrakesh VIP Treaty, where persons in South Africa who access global libraries such as “Bookshare” are not liable under South Africa’s Copyright Act 98 of 1978.
Blind SA has been advocating for exceptions in South Africa’s copyright legislation for 20 years. Their May 2025 success in the Constitutional Court is heralded as a landmark victory that will permit persons with visual and print disabilities to better access copyrighted material. Blind SA affirms that this access will support education and enable persons with visual and print disabilities to better participate in the South African society as a whole. Further, the Constitutional Court’s decision to read-in “clause 19D” makes South Africa’s copyright legislation compatible with the Marrakesh VIP Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled. Although South Africa has not yet signed on to the Marrakesh VIP Treaty, the reading-in of “clause 19D” satisfies one of the necessary conditions for South Africa’s accession to the treaty by aligning its legislation with the treaty’s requirements. However, critics of the decision note that the “reading-in” remedy creates a legal uncertainty around the validity of key sections of the Copyright Act and of the reform itself. See Blind SA ruling creates anomaly.
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