The International Commission of Jurists (ICJ) and Equal Education Law Centre (EELC) welcome the judgment handed down by the South African Constitutional Court in the matter of BlindSA v Minister of Trade, Industry and Competition on 21 September 2022. In a unanimous decision, the Court confirmed a Gauteng High Court order declaring the Copyright Act unconstitutional to the extent that it fails to make provisions that uphold the rights of persons with disabilities.
The judgment, written by Justice Unterhalter, affirms that the Copyright Act, as it stands, is unconstitutional because of its failure to provide an exception that would allow for the reproduction and adaptation of literary materials to meet the needs of persons who are blind, visually impaired or otherwise print disabled. Such provision is required under the terms of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled, which South Africa has not yet ratified or acceded to. In coming to its conclusion, the Court reasoned:
“That those with print and visual disabilities should be so radically compromised in the access they enjoy to literary works by reason of the requirement of authorisation is to heap indignity upon the adversities these persons face.”
The International Commission of Jurists, represented by Equal Education Law Centre, had supported the application brought by Blind SA in both the High Court and the Constitutional Court through written and oral submissions. Speaking after judgment was handed down, ICJ Legal Adviser Tim Fish Hodgson welcomed the judgment, stating that:
“The Court’s judgment is a vindication of the rights of persons with disabilities in South Africa who have been made to wait an unreasonably long time during Parliament’s protracted legislative amendment process. As the Court confirms, both international and domestic law require South Africa to ensure equal access to reading materials for all persons.”
“We commend BlindSA, SECTION27 and all others who have worked tirelessly to ensure that persons with print disabilities can have the access to reading materials that many take for granted,” he added.
Persons with print disabilities around the world typically experience great difficulties accessing reading materials that are necessary for them fully and equally learn and participate in all aspects of life. To provide for effective access to reading materials for persons with disabilities, States must ensure that literary materials that are lawfully procured, can be adapted and reproduced to allow for use by persons with disabilities. The South African Copyright Act prevented such adaptation and reproduction, thus dramatically limiting access to reading materials for persons with print disabilities and visual impairments.
“As the Court acknowledges, the failure to facilitate access to reading materials for persons with disabilities compounds the struggles faced by such persons in securing books needed for their education. This has a disproportionate impact on poor, predominantly black, children in particular,” – Ebrahiem Daniels, Candidate Attorney of EELC stated.
“We hope that this judgment will, among other things, serve as a catalyst to improve access to inclusive education for all children in South Africa,” he concluded.
The judgment has suspended the declaration of invalidity of the Copyright Act for 24 months to give Parliament an opportunity to remedy the constitutional defects. However, acknowledging that “persons with print and visual disabilities should not have to wait further to secure a remedy”, the Court provides for comprehensive interim relief that should allow persons with disabilities to have substantially increased access to literary materials with immediate effect.
Additional information:
[Judgment] BlindSA v Ministry of Trade, Industry and Competition [ICJ Heads of Argument] ICJ Amicus Curiae Written Submissions [Joint submission with EELC] Submissions on Copyright Amendment Bill [Blog] Ending Book Famine and Vaccine Inequality: What a South African Court’s Decision on Copyright Law has to do with COVID-19 Vaccine Access [Op-ed] The Copyright Amendment Bill: A step closer to making rights to education and health a realityContact:
Timothy Fish Hodgson, ICJ Legal Adviser on Economic, Social and Cultural Rights, e: timothy.hodgson@icj.org
Kaajal Ramjathan-Keogh, Director of the ICJ Africa Regional Office, e: Kaajal.Keogh@icj.org
Mulesa Lumina, Communications and Legal Officer the ICJ Africa Regional Office, e: Mulesa.Lumina@icj.org
Anele Gcwabe, Media and Communications Coordinator at Equal Education Law Centre, e: anele@eelawcentre.org.za
Background
The ICJ’s written submissions and oral arguments made at the 21 May hearing supported the arguments raised by BlindSA and emphasized South Africa’s international legal obligations in terms of the Convention on the Rights of Persons with Disabilities, the International Covenant on Economic, Social and Cultural Rights and the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled.
While South Africa has not yet acceded to the Marrakesh Treaty, the ICJ has stressed that certain provisions are already effectively part of international human rights. The Constitutional Court, consistently with the applicant’s and ICJ’s submissions, in fact applied provisions of the Marrakesh Treaty in determining the constitutional validity of the Copyright Act.