Educational exceptions in Copyright Amendment Bill are mandated by international law and the Constitution

By Faranaaz Veriava and Anne Marie Strohwald 

The Constitutional Court [in South Africa] will on 21 and 22 May 2025 hear submissions relating to the constitutionality of the Copyright Amendment Bill that has been in the making since as far back as 2015.

The National Assembly voted for the Copyright Amendment Bill in 2024 amid some intense opposition. The President, instead of signing the Bill into law, invoked his presidential prerogative in terms of section 79(5) of the Constitution and referred it to the Constitutional Court, raising reservations in respect of the constitutionality of certain aspects of the Bill, including whether the educational exceptions – that exempt activities associated with teaching and research from copyright protection – are consistent with international copyright law. 

The Centre for Child Law, a public interest organisation and the Unesco Chair: Education Law in Africa, a rights-based think tank, both based at the University of Pretoria, have been admitted as the fifth amicus curiae in the matter.

Interestingly, in a crowded house of eight amici that include publishers, authors, musicians and other creatives, the Centre and the Unesco Chair are the only amici that have been granted leave to make oral submissions in the court.

At the core of their submissions is the assertion that while the President considers whether the Bill is compliant with international copyright treaties and whether the exception violates section 25(1), the property right clause, the President is completely silent on South Africa’s obligations in terms international human rights law and its broader constitutional obligations. 

Background to the Copyright Amendment Bill referral

In 2020, the President referred the Bill back to Parliament for similar reasons. In 2021, the organisation Blind SA, frustrated by the persistent impact of delays in copyright reform that prolonged a book famine wherein blind persons had access to less than 10% of available books, instituted an application to declare the 1976 Copyright Act invalid due to its failure to provide a copyright exception for persons with visual disabilities. 

In 2022, the Constitutional Court in Blind SA I declared the impugned provisions, that required the permission of copyright owners – rarely provided – before their works could be reproduced in accessible formats for persons with visual and print disabilities, to be constitutionally invalid. The provision also criminalised accessible formatting without such permission.

The court held that requiring the permission of the copyright owners to create accessible formats amounted to a discriminatory barrier that unfairly prevented people with visual and print disabilities from accessing copyrighted materials. 

The court order suspended the declaration of invalidity for 24 months and formulated an interim remedy in the form of a reading-in of a temporary provision to the Copyright Act. The suspension period lapsed in September 2024, after being voted on in Parliament, but without being signed by the President. This necessitated that Blind SA return to the court on an urgent basis. 

The Constitutional Court in Blind SA II held that the failure to enact the Bill within 24 months created a legal gap, reverting the Copyright Act to the position before Blind SA I, making people with visual and print disabilities vulnerable and having to make the impossible decision to either break the law or not have access to a books.

It therefore read into the Act the carefully crafted education exception in the Bill that aims to enable accessible format shifting for persons with visual and print disabilities. This provision is not one of the educational exceptions that are the subject of the President’s current reservations and remains in place if, and until, the Bill is finally signed into law. 

Educational exceptions will ease access for poor learners and students

Thus, while Blind SA II is a long-awaited victory for blind people for multiple reasons, the educational exceptions are not only included in the Bill to facilitate access to learning materials for persons with print and visual disabilities, as is suggested in the President’s submissions. The educational exceptions are necessary to ensure that all learners and students, including the poorest learners and students, have access to learning materials.

This category of learners and students, while including persons with print and visual disabilities, constitutes the majority of learners and students in South Africa. Copyright, therefore, exists as a barrier to access to educational materials for poor learners and students.

A wide body of evidence, including from Unesco, makes clear that there is a direct correlation between educational materials and educational outcomes. Research disaggregating data on educational outcomes further highlights that educational outcomes are worse for learners and students from poorer communities lacking access to basic educational resources. For example, copyright laws preventing the making of copies of textbooks for learners and students make access to knowledge unaffordable. 

The Centre and the Unesco Chair argue that the educational exceptions are necessary for South Africa to comply with international human rights law to ensure the enjoyment of three reinforcing and mutually interdependent rights: The right to education, the best interests of the child principle and the principle of equality and non-discrimination.

Furthermore, section 39(1) of the Constitution mandates that international laws serve as an interpretive guide to its counterparts in the Constitution. Section 233 of the Constitution also requires that, “when interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law”. 

The right to education is recognised in several international and African regional instruments, including: the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Rights of the Child (CRC); and the African Charter on the Rights and Welfare of the Child (ACRWC) – all of which have been ratified by South Africa, thus creating obligations for South Africa as a party to these instruments. International human rights law elaborations of the right confirm that the educational exceptions are permissible.

The availability of education in international human rights law refers not only to the availability of schools, but also includes the availability of resources to facilitate teaching and learning.

The accessibility of education in international human rights law has various dimensions.

Discrimination and economic accessibility

Because the legacy of apartheid education is still clearly visible in educational spaces, poor African learners remain vulnerable and must be protected from discrimination. Economic accessibility, because educational materials must be affordable. This requires that the financial and legal barriers to accessing learning materials must be removed to ensure that all learners have access, especially those who are vulnerable and poor. 

The right to basic education as recognised in section 29(1)(a) of the Constitution has been confirmed by the Constitutional Court to be an immediately realisable and unqualified right.

When interpreting this right, the specific historical context must be considered, as the jurisprudence makes it clear that education is viewed as a primary driver of transformative change in South Africa. Furthermore, the BlindSA I judgment noted explicitly that both the rights to basic and further education place an obligation on the state to make learning materials available to learners. 

Reinforcing the right to education is the best interests of the child principle recognised in the CRC and the ACRWC. Elaborations of this right in international law note that other considerations, such as the economic interests of copyright holders, cannot trump or be weighed on par with the rights of the poorest children to learning materials. The best interests of the child principle has been domesticated in section 28(2) of the Constitution as well as the Children’s Act 38 of 2005. Jurisprudence on the child’s right to basic education has made it clear that the child’s best interests are of paramount importance in matters that affect them. 

In the context of equality and non-discrimination, this right exists as a core principle in several international instruments, including the Unesco Convention Against Discrimination in Education. Furthermore, poverty or socioeconomic disadvantage is a recognised category of discrimination requiring protection from discrimination. The right to equality is also protected in section 9 of the Constitution. While poverty or socioeconomic disadvantage is not a listed ground of discrimination in the Constitution, it has been recognised as an analogous ground of discrimination by the Constitutional Court’s jurisprudence. 

Exceptions compatible with international copyright law

South Africa has concurrent obligations concerning international copyright and international human rights law. The centre and the Unesco Chair refute that the educational exceptions violate international copyright protection and argue that international copyright protection and international human rights law are reconcilable. This is because article 10(2) of the Berne Convention for the Protection of Literary and Artistic Works, which was ratified by South Africa, has been incorporated into the educational exceptions. It states: 

“It shall be a matter for legislation in the countries of the Union, and for special agreements existing or to be concluded between them, to permit the utilization, to the extent justified by the purpose, of literary or artistic works by way of illustration in publications, broadcasts or sound or visual recordings for teaching, provided such utilization is compatible with fair practice.” (Own emphasis.)

In developing educational exceptions under article 10(2) of the Berne Convention, state parties have a degree of latitude in determining the meaning of “fair practice, in accordance with their domestic legal systems and significantly, socioeconomic conditions. 

No arbitrary deprivation of property

The Centre and the Unesco Chair argue that copyright is not “property” in terms of section 25(1) of the Constitution. However, even if it does fall within the scope of section 25(1), the educational exceptions do not constitute an arbitrary deprivation of property as there is “sufficient reason” for them in the Bill.

The educational exceptions fulfil government’s constitutional obligations in respect of the right to education, which includes the paramountcy of the best interests principle and adopting measures in respect of section 9(2) of the Constitution which requires the state to adopt legislative measures to protect or advance persons or categories of persons disadvantaged by unfair discrimination. 

Conclusion

From the President’s submissions, it is clear that he failed to engage with South Africa’s international human rights law obligations. The educational exceptions in the Bill fulfil both South Africa’s international human rights law and constitutional obligations to advance the role of education as a vehicle for transformation in South Africa. 

Finally, the President’s submissions provide that “the new exceptions are manifestations of a material shift in government policy on the balance that must be struck between the owners of copyright on the one hand and the users of their copyright materials on the other”. In respect of educational exceptions, this shift is not merely a policy choice or a matter of balancing interests – it is a matter of international and constitutional legal obligation. This is the case that the Centre and the Unesco Chair’s submissions are advancing before the Constitutional Court. 

Dr Faranaaz Veriava is senior lecturer in the Department of Private Law and a senior research fellow to the Unesco Chair: Education Law in Africa at the University of Pretoria. Dr Anne Marie Strohwald is a lecturer in the Department of Private Law at the University of Pretoria.

This article was first published in Daily Maverick. It is reproduced here with the authors’ permission.