South African apex court recognises the “constitutional imperatives of equality and dignity for persons with disabilities” in landmark copyright judgment
Blind SA II is the latest major instalment in a long-standing – and ongoing – saga of South Africa’s copyright reform process that began over a decade ago. South Africa’s Copyright Act 98 of 1978 does not contain provisions that explicitly permit accessible format shifting. People with disabilities have thus had to expose themselves to criminal and civil sanction to access educational and cultural materials that are unavailable in accessible formats. On this basis, and due to the protracted reform process, Blind SA, represented by SECTION27, approached the High Court in 2021, arguing that the lack of such provisions in the Copyright Act constituted unfair discrimination against people with disabilities, and violated several rights in the Constitution’s Bill of Rights including the rights to equality, dignity, education, culture and freedom of expression. The High Court held that the Act was thus unconstitutional. The Constitutional Court confirmed the unconstitutionality of the Act to this extent in Blind SA v Minister of Trade and Industry and Others [2022] ZACC 33 (‘Blind SA I’). Writing elsewhere, I have conceptualised this as copyright discrimination. To remedy the constitutional defect, the Constitutional Court read-in a court-crafted provision (s 13A) that explicitly permitted accessible format shifting – but limited its scope of application to literary and artistic works and to people with visual and print disabilities only. Mindful of the ongoing legislative process, the Court suspended the declaration of invalidity and limited the reading-in remedy to a period of two years – after which it envisioned that the reform process would be concluded.
However, on 21 September 2024, the remedy ordered by the Court in Blind SA I lapsed, creating – in the Court’s own words in Blind SA II – an “immediate rights vacuum affecting the constitutional rights of visually and print-impaired persons” [para 55]. Although Parliament had acted within the time frame set by the Court’s order by passing the Copyright Amendment Bill in February 2024, the President did not make a decision on whether to sign the Bill into law within the prescribed time frame. Following the lapsing of the remedy, Blind SA urgently approached the Constitutional Court seeking relief amongst other things on the basis that the scheme of copyright – and its criminal and civil consequences for infringement – required a clear statement of permitted acts that were exempted from infringement. Following the lapsing of the remedy, the legal position was unclear, creating uncertainty in the face of confirmed constitutional rights violations. Blind SA thus sought a re-reading in of the same remedy (s 13A) until the process concluded, or any other remedy that the Court considered just and equitable.
Days after Blind SA’s application was filed, on 10 October 2024, the President triggered a rare constitutional mechanism, declining to sign the Bill into law and instead referring it to the Constitutional Court citing that two of his constitutional reservations, previously raised in 2020, when he referred a previous version of the Bill to Parliament, had not been fully accommodated by Parliament. Notably, his reservations did not concern the accessible format shifting and cross border exchange provisions (proposed s 19D of the Bill) [para 53]. In the words of the Court, “the provision maintains its constitutional integrity and remains separate from the concerns raised in the President’s referral”[para 57]. However, due to the fact that these provisions were part of the Bill being impugned by the President, they also remain in abeyance. The Court is now due to hear the matter concerning the President’s referral on 21 and 22 May 2025 (‘the Referral proceedings’) that will determine the eventual fate of the Copyright Amendment Bill.
Meanwhile, the Constitutional Court held a hearing in November 2024 where it considered Blind SA’s application for urgent relief – in light of the President’s referral. As none of the parties disputed urgency, the hearing centred around what a just and equitable remedy would look like, given the circumstances. Subsequently, in an interim order dated 18 December 2024, to remain in force until the Court’s final judgment in the case, the Court read-in once again its remedy from Blind SA I (s 13A), effectively ensuring that people with visual and print disabilities could continue to engage in accessible format shifting without it being considered an infringement of copyright. The lacuna in the law was temporarily filled.
This brings us to 7 May 2025. The Court handed down its judgment in Blind SA II summarising that back in 2022, “the constitutional defect that necessitated this Court’s intervention did not lie in any specific provision of the Copyright Act that needed to be struck down, but rather in the absence of necessary provisions to protect the rights of persons with visual and print disabilities”[para 47], and given the change in circumstances in 2025, when considering an appropriate just and equitable remedy “[t]he potential violation of fundamental rights emerges as the decisive consideration, particularly given the absence of certainty regarding the Bill’s eventual assent”[para 49]. The Court held that the “comprehensive approach to accessibility rights” adopted by s 19D “better serves the constitutional imperatives of equality and dignity for persons with disabilities” [para 57]. In particular, the Court emphasised that [para 56]:
Its structure harmonises with both evolving disability rights’ principles and South Africa’s international obligations, providing essential flexibility, durability and clarity for meaningful relief. Reading in clause 19D as interim relief achieves an appropriate balance between constitutional imperatives, legislative intent and pressing accessibility needs in a manner that section 13A, with its inherent limitations, could not accomplish.
On this basis, and due to the significantly advanced legislative process, the Court determined that it would not offend the separation of powers for it to read-in proposed s 19D from the Copyright Amendment Bill until such time as remedial legislation is brought into force. On the contrary, the Court stated that “[t]his solution represents a pragmatic response to an urgent constitutional need while maintaining appropriate deference to legislative and executive functions,” [para 58] as this is Parliament’s chosen legislative solution with which the President has not taken issue [para 59].
In the operative part of its order, the Court read-in s 19D and the relevant definitions that it required for its immediate operation, verbatim from the Copyright Amendment Bill. It did not limit its reading-in by providing a time frame as such. Rather, the Court stated that s 19D would be read-in until such time as remedial legislation that fixes the constitutional defects identified in Blind SA I comes into force. This replaces the interim s 13A order.
So, what does s 19D do? And why is this ruling significant? The scope of s 19D in applying to people with all disabilities across the spectrum, as I have co-written elsewhere, gives effect to the state’s “immediate duty, under both the CRPD and the Constitution, to ensure the full and equal participation of persons with all disabilities in society”. In addition to all disabilities, s 19D’s scope of application to all works is in line with the programme of study proposed by the African group and adopted by WIPO’s Standing Committee on Copyright and Related Rights (SCCR) to review the implementation of the Marrakesh VIP Treaty and “to ensure that people with other disabilities (also covered by the Convention on the Rights of Persons with Disabilities) can benefit from similar protections, in particular in order to benefit from new technologies”.
Moreover, s 19D also textually clarifies beyond any doubt that authorial consent is not required for the cross-border exchange of legally created accessible works, providing scaffolding in line with the Marrakesh VIP Treaty. This overcomes any perceived barriers for people with disabilities and institutions seeking to serve people with disabilities in South Africa that may have previously prevented comprehensive access to global libraries such as Bookshare, thus significantly expanding access to the world of educational and cultural materials for people with disabilities.
Finally, the approach taken by the Court is globally significant. Building on Blind SA I’s ground breaking finding of unfair discrimination against people with visual and print disabilities (and other constitutional rights violations) caused by the operation of restrictive copyright laws, Blind SA II goes a step further in expanding the scope of application of the remedy. It also recognises that the South African Parliament’s harmonious interpretation of its domestic constitutional obligations, its international human rights obligations, and international copyright obligations in the form of s 19D is not only defensible but “robust and legally sustainable” [para 56]. This provides important lessons to comparative jurisdictions when considering the adverse impact of restrictive copyright laws upon the most marginalised members of society and modelling possible solutions that are intersectional.
Dr Sanya Samtani BA LLB (Hons), BCL (Oxon.) DPhil (Oxon.) is a Senior Researcher at the Mandela Institute at the University of the Witwatersrand, Johannesburg. The author is the academic advisor to Blind SA in the litigation. ORCiD: https://orcid.org/0000-0003-0448-8798
