On 21 September 2022, the Constitutional Court confirmed the Gauteng High Court’s ruling in declaring the Copyright Act unconstitutional.
The organisation, Blind SA, brought an application in the High Court in which an order was sought declaring the Copyright Act unconstitutional to the extent that it unjustifiably limits the rights of persons with visual and print disabilities.
The High Court delivered a judgment declaring that the Copyright Act is unconstitutional on the basis that it fails to make provision for exceptions that would enable the conversion of works, which will provide access to such works by persons with visual and print disabilities.
The Act gives protection to different types of works that have been produced. This includes literary works, artistic works, musical works, cinematograph films, sound recording, broadcasts, programme carrying signals, published editions and computer programs.
The general requirements for copyright to subsist are that:
- The work must be an original
- The work must be reduced to a material form
The copyright owner enjoys exclusive rights regarding what may be done or may be authorised to be done with the work. These acts are known as restricted acts. For example, with literary or musical works those restricted acts or exclusive rights would include reproducing, performing, publishing if unpublished, broadcasting the work, making an adaptation of the work, or any of the acts specified in relations such adaptation.
The High Court held that even though there are alternative formats available for blind persons and those with visual and print disabilities, the Act was restrictive in terms of the free conversion of works under copyright into alternative formats. The consent of copyright owners was required to convert works under copyright into formats where persons with print and visual disabilities have equal access to information. The High Court found the prohibition of the free conversion of works to be discriminatory and, therefore, inconsistent with the Constitution.
The matter was taken to the Constitutional Court for confirmation in terms of section 172 of the Constitution.
The Court held that the protection provided by the Act to owners of copyright in literary works displays the difference between those with print and visual disabilities, and those who do not suffer these impairments. The restrictions that the exclusive rights granted by the Copyright Act cause to those without disabilities who are able to access literary works, cannot be compared to the deprivations suffered by those with print and visual disabilities. The rights protected under the Copyright Act cannot be used to disadvantage a class of persons who have the same need to have access to literary works that persons without impairments have access to. The Court concluded that the requirement of authorisation leads to the scarcity of literary works in accessible format copies and therefore, that amount to unfair discrimination on the grounds of disability, which section 9 of the Constitution prohibits.
The declaration of invalidity has been suspended for a period of 24 months to allow Parliament an opportunity to complete its work in terms of the Copyright Amendment Bill and to remedy the unconstitutionality. For the purposes of interim relief, the court read in a provision as a temporary remedy to the constitutional defect.