ZACC 33
Hearing Date: 12 May 2022
Judgement Date: 21 September 2022
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Wednesday, 21 September 2022 at 09h30, the Constitutional Court handed down judgment in an application for confirmation of the order of constitutional invalidity made by the High Court of South Africa, Gauteng Division, Pretoria (High Court). The High Court declared the Copyright Act 78 of 1978 unconstitutional to the extent that it fails to make provision for exceptions that would enable, through the conversion of works under copyright, suitable formats that enable access. It ordered that the provisions of the Copyright Amendment Bill [B 13B – 2017] (CAB), as set out in section 19D of the CAB, be read as if specifically incorporated in the provisions of the Copyright Act to remove the inconsistency of the Act with the Constitution.
Before the Constitutional Court, the applicant, Blind SA, and the first respondent, the Minister of Trade, Industry and Competition (Minister) agreed that the Copyright Act is unconstitutional to the extent so declared by the High Court. Professor Owen Dean, Media Monitoring Africa Trust (MMA) and the International Commission of Jurists (ICJ) were admitted as the first, second and third amici respectively.
The crux of the matter concerned Blind SA’s contention that the Copyright Act limits the availability of works under copyright in formats accessible to persons with print and visual disabilities. The Copyright Act requires the consent of the copyright owner to convert works into formats suitable for the use of persons with print and visual disabilities. As a result, such persons suffer severe limitations in accessing works under copyright that persons without these disabilities do not encounter. There is a legislative process under way to amend the Copyright Act. This process has endured since 2015. On 28 March 2019, Parliament passed the CAB. The CAB sought to introduce section 19D in terms of which prescribed persons may, without the authorization of the copyright owner, make, supply and undertake any intermediate steps to provide an accessible format copy for the benefit of a person with a disability; thus providing exceptions to copyright protections so as to allow blind and visually impaired persons and persons with other disabilities to access such works in formats that are appropriate for their particular disabilities. On 16 June 2020, the CAB was referred back to the National Assembly by the President in terms of section 79(1) of the Constitution. Aggrieved by this lengthy legislative process, Blind SA approached the High Court for an order declaring the Copyright Act unconstitutional to the extent that it unjustifiably limits the rights of persons with visual and print disabilities.
On 7 December 2021, the High Court 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. The application was unopposed. The High Court found that, acting in line with the declaration of intent to ratify the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (Marrakesh Treaty), Parliament adopted the CAB which proposes the insertion of the new proposed section 19D to create exceptions for the benefit of the blind and people with visual and print disabilities. 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 the blind, and visually and print disabled persons.
In the Constitutional Court, Blind SA sought confirmation of the High Court’s order that the Copyright Act is unconstitutional.
Blind SA submitted that the key provision that was required to give effect to the Marrakesh Treaty was the CAB’s proposed new section 19D. Blind SA further argued that section 13 of the Copyright Act, which provides for general exceptions in respect of the reproduction of works, insofar as literary works are concerned, provided no power to make regulations dealing with the publication of unpublished works, the transmission of works, and/or the adaptation of works. Blind SA also contended that the Copyright Act limited the following rights: equality, dignity, basic and further education, freedom of expression, and participation in the cultural life of one’s choice. Blind SA sought the confirmation of the order granted by the High Court, a reading-in of the proposed new section 19D; and submitted that this Court should not suspend the declaration of invalidity as it is coupled with a reading-in remedy.
The Minister submitted that the relief sought by Blind SA, namely a final reading-in without suspension of the finding of unconstitutionality, was inappropriate. Rather, a suspension of the order of unconstitutionality for a 24-month period was a remedy that did not intrude unduly into the domain of Parliament.
The first amicus, Professor Dean, submitted that the Copyright Act was not unconstitutional because section 13 of the Act permits the Minister to promulgate regulations which would allow for the reproduction of works under copyright, in the manner contemplated by Blind SA. Alternatively, he submitted that the High Court’s reading-in of section 19D was inappropriate because section 19D is not consistent with the Marrakesh Treaty, and it created various lacunae if read-in without the other provisions of the CAB. Professor Dean proposed an alternative wording for the exception which he said could be promulgated by regulation by the Minister or, if the Court found the Copyright Act to be unconstitutional, he proposed the inclusion of a reading-in of a temporary provision in the Act that he argued was immediately operative and, unlike section 19D, conformed to the Marrakesh Treaty.
The second amicus, MMA, contended that South Africa’s current copyright regime is in conflict with the right to freedom of expression and access to information, and that a balance must be struck between the rights of copyright and intellectual property owners and the rights of all people to access and impart knowledge and ideas. According to MMA, this balance can be found in the remedy proposed by Blind SA, being the reading-in of section 19D of the CAB.
The third amicus, ICJ, submitted that the Copyright Act must, in addition to the relevant copyright regime, be interpreted in line with international human rights treaties such as the Convention on the Rights of Persons with Disabilities (CRPD), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Marrakesh Treaty. It contended that the enactment of provisions like section 19D of the CAB was legally permissible in terms of South Africa’s international human rights law obligations.
In a unanimous judgment penned by Unterhalter AJ, the Constitutional Court confirmed the order of constitutional invalidity made by the High Court.
The Court first identified the case pleaded by Blind SA to be the scarcity of published literary works in accessible format copies for the use of persons with visual and print disabilities. A scarcity that is attributable to the difficulty of securing the required authorisation of the owners of copyright in literary works. Having identified the case advanced by Blind SA, the Court then identified what the case was not about: (a) the need for access to unpublished literary works; (b) the importation and exportation of copyrighted works and; (c) a challenge to bring Parliament’s delay under constitutional review.
The Court held that legislation that protects the rights of copyright owners must take account of the differential impacts of such protection upon different classes of persons. Therefore, where those with print and visual disabilities suffer great and particular hardship by reason of the requirement of authorisation, the requirement could not be applied as if all persons who need access to literary works were similarly situated. It found that to apply the requirement of authorisation to all exposed those with print and visual disabilities to the damaging scarcity of literary works. That constituted unfair discrimination on the grounds of disability, and thus infringed section 9(3) of the Constitution. In addition, the Court also found this requirement to infringe the rights of persons with print and visual disabilities as contemplated in sections 10 (dignity), 16(1)(b) (freedom of expression), 29(1) (right to basic and further education) and 30 (language and culture) of the Constitution, for like reasons.
The Court then considered whether the powers conferred upon the Minister in terms of section 13 to issue regulations in respect of general exceptions in the reproduction of works saved the statute from constitutional invalidity. In determining this, the Court deliberated on the distinction between adaptation and reproduction as contemplated in the Act. It found that the exact boundary was hard to draw, more especially because the parties failed to make adequate submissions on this distinction. The Court assessed Article 4(1)(a) of the Marrakesh Treaty which states that “[t]he limitation or exception provided in national law should permit changes needed to make the work accessible in the alternative format”. It found that the reproduction of literary works, no matter how generously interpreted, was insufficient for the conversion of literary works into accessible format copies for use by persons with visual and print disabilities. Therefore, section 13 did not save the Act from its constitutional invalidity.
Having found this, the Court assessed remedies to cure the constitutional invalidity. It found a reading-in of section 19D of the CAB to be too wide and imprecise. According to the Court, such a reading-in went beyond the case advanced by Blind SA and beyond the submissions made by the parties. Thus, the Court formulated an order that was responsive to the case that Blind SA had established. The following important elements feature in the order: (a) sections 6 and 7 (these sections vest exclusive rights to copyright owners to perform a list of activities in respect of literary and artistic works), read with section 23 (this section sets out the circumstances under which copyright will be infringed) of the Copyright Act were declared unconstitutional, invalid and inconsistent with the rights of persons with visual and print disabilities, as set out in sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution, to the extent that these provisions of the Act limit the access of such persons to published literary works, and artistic works as may be included in such literary works, in accessible format copies; and (b) key terms such as “a person with a visual and print disability”, “accessible format copy”, “beneficiary person”, “literary works” and “permitted entity” were defined to make the reading-in provision immediately operable.
Accordingly, the Court confirmed the order of the High Court declaring the Copyright Act unconstitutional, but only to the extent as identified above. It ordered a reading-in of section 13 of the Act under the heading “section 13A Exceptions applicable to beneficiary persons”. This reading-in is to endure for 24 months to enable Parliament to cure the defect in the Copyright Act giving rise to its invalidity.
The Full judgment here