Sean Flynn

In a huge court victory that may assist human rights and IP advocacy, the SA Constitutional Court released a quite remarkable judgment today that “reads in” the copyright amendment bill’s disability provisions into the current law because of the long delay in passing the bill.

The Court finds that the lack of disability exceptions in current law violates the equality right of people with disabilities. It also finds a violation of free expression rights that uses reasoning with broader import:

“[72] So too, persons with print and visual impairments have their rights to freedom of expression, and in particular the freedom to receive and impart information in terms of section 16(1)(b), infringed by the requirement of authorisation. The evidence before us shows that the requirement of authorisation drastically limits access to literary works, impairs the freedom to receive information, and thus, in turn, to impart information. The requirement also limits the participation of persons with print and visual disabilities in the cultural life of their choice. Literary works are an important source of cultural life. When access to literary works is limited, so too are persons affected by this limitation compromised in their enjoyment of the right to participate in the cultural life of their choice. Section 30 of the Constitution is thus also infringed by the requirement of authorisation.”

Under the SA constitution, finding a limitation of a right is the first step, demanding a sufficient justification to survive (under terms that look like strict scrutiny in the USA). Section 36 of the Constitution states that limitation on rights must be “reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including ­

  1. the nature of the right;
  2. the importance of the purpose of the limitation;
  3. the nature and extent of the limitation;
  4. the relation between the limitation and its purpose; and
  5. less restrictive means to achieve the purpose.

But the Court skips this step because “No case was advanced by the Minister to show that the limitation of rights is justified.”

Thus the question as to whether and how other restrictions on freedom of expression (such as for research) may or may not survive constitutional challenge is not well outlined in this opinion. But it makes an important step in the human rights analysis of copyright clear – copyright is state action that limits rights to freedom of expression (receive and impart information) and to survive constitutional scrutiny the exceptions must be adequate to render the limitation of rights reasonable and justifiable.

Some of the issues in the case were analyzed for the court and in submissions to government by members of the Global Expert Network on Copyright User Rights that PIJIP coordinates, including Sanya Samtani, Andrew Rens, Caroline Ncube, Jonathan Klaaren, Klaus Beiter, Malebakeng Forere, Tobias Schonwetter and myself. The Recreate South Africa Coalition filed briefs in the case. Its member Blind SA was the complainant.