Blind SA v Minister of Trade, Industry and Competition and Others

1. Case Citation and Basic Information

Case Name: Blind SA v Minister of Trade, Industry and Competition and Others

Citation: [2022] ZACC 33; 2023 (2) BCLR 117 (CC); 2022 BIP 518 (CC)

Court: Constitutional Court of South Africa

Date of Decision: 21 September 2022

Presiding Judge: Unterhalter AJ (unanimous judgment)

Case History: Confirmation of constitutional invalidity order — High Court of South Africa, Gauteng Division, Pretoria (7 December 2021)

2. Introduction

Can copyright law treat everyone the same when the practical effect is that blind and visually impaired people cannot read? The Constitutional Court answered no. Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33 is the first copyright case the Court decided, and first case globally where a court held that lacking a disability exception constitutes unfair discrimination.[1]^,[2]

The case arose from the Copyright Act 98 of 1978’s failure to allow accessible format conversions, such as Braille or audio, without owner permission. After more than two decades of failed reform, the Court confirmed the Act was unconstitutional and crafted a targeted remedy. The judgment is significant because it highlights the relationship between intellectual property protection and the Constitution.

3. Facts of the Case

Blind SA is a non-profit organisation representing visually impaired persons in South Africa. The respondents included the Minister of Trade, Industry and Competition, the Minister of Justice and Constitutional Development, and the presiding officers of Parliament.

The Copyright Act 98 of 1978 grants copyright owners exclusive rights over their works. Sections 6 and 7 cover literary and artistic works respectively, and section 23 defines infringement.[3] The Act contained no exception allowing persons with disabilities to convert copyrighted works into accessible formats without the copyright owner’s authorisation. This made converting books into Braille unworkable without permission.

In 2013, the international community adopted the Marrakesh Treaty, requiring member states to introduce copyright exceptions for persons with print disabilities.[4] South Africa declared its intention to ratify the Treaty but did not. Parliament passed the Copyright Amendment Bill (CAB) in March 2019, which included a proposed section 19D creating the necessary exceptions. However, President Ramaphosa referred the CAB back to the National Assembly in June 2020 under section 79(1) of the Constitution, stalling the process indefinitely.[5]

With over two decades of legislative delay, Blind SA approached the Gauteng High Court. On 7 December 2021, the High Court declared the Act unconstitutional and ordered a reading-in of section 19D as an interim fix.[6] As required by section 172(2)(a) of the Constitution, the order was referred to the Constitutional Court for confirmation.[7]

4. Legal Issues

Issue 1: Whether sections 6 and 7, read with section 23, of the Copyright Act are unconstitutional to the extent that they fail to provide exceptions allowing persons with visual and print disabilities to access published literary works in accessible format copies without copyright owner authorisation.

Issue 2: Whether section 13 of the Copyright Act, which allows the Minister to make regulations about general exceptions to reproduction rights, saved the Act from constitutional invalidity.

Issue 3: What was the appropriate remedy; whether reading in section 19D of the CAB was correct, or whether the Court should craft its own narrower reading-in.

5. Arguments Presented

5.1 Applicant’s Arguments (Blind SA)

Blind SA argued that fewer than 10% of published works globally are available in accessible formats, and that the Act’s blanket authorisation requirement caused this scarcity by making conversion legally impossible without copyright owner cooperation.[8] Because the requirement applied equally to everyone but only harmed those who had no other means of access, it constituted unfair discrimination on the ground of disability under section 9(3) of the Constitution, and also violated sections 10, 16(1)(b), 29(1), and 30.[9] Blind SA sought an immediate reading-in of section 19D, arguing that any further suspension of the invalidity order prolonged harm to an already marginalised group.

5.2 Respondents’ and Amici Arguments

The Minister did not oppose the unconstitutionality finding but argued for a 24-month suspension to allow Parliament to legislate without judicial overreach.[10] Professor Owen Dean, the first amicus curiae, contended that section 13 gave the Minister power to regulate for accessible format reproductions, meaning the Act was not unconstitutional. Alternatively, he proposed a narrower reading-in than section 19D.[11] Media Monitoring Africa Trust supported Blind SA, while the International Commission of Jurists urged the Court to read the Act alongside international human rights instruments, including the Marrakesh Treaty, the CRPD, and the ICESCR.[12]

6. Court’s Reasoning and Analysis

Unterhalter AJ, writing for a unanimous Court, began by narrowing the scope of the case: the issue was the scarcity of accessible format copies of published literary works caused by the authorisation requirement. It was not about unpublished works, the import or export of copyrighted materials, or Parliament’s delay.[13]

The Court’s approach focused on the different practical impact the law had on blind and sighted individuals. Although the authorisation requirement applied equally, its effect was different in practice. A sighted person can read a purchased book; a blind person cannot. Conversion is necessary, as it is the only way blind readers can access the content, and the Act offered no route without copyright owner cooperation. The Court found this amounted to unfair discrimination under section 9(3), and that the same failure violated sections 10, 16(1)(b), 29(1), and 30.[14]

On the section 13 argument, the Court rejected Professor Dean’s submission that the Minister’s power to make regulations about reproduction exceptions could save the Act. The Court made a distinction between reproduction and adaptation: converting a work to Braille or audio typically requires adaptation, not merely reproduction. Section 13 was limited to reproduction, and even interpreted generously, it could not cover the full range of activities needed to produce an accessible format copy. The section 13 argument therefore failed, though the Court acknowledged the exact boundary between adaptation and reproduction was not easy to define on the submissions before it.[15]

On remedy, the Court declined to read in section 19D. That provision extended to a wider range of disabilities and works than Blind SA’s case had established, and reading it in wholesale would go beyond the proven constitutional defect.[16] Instead, the Court crafted its own section 13A, tightly limited to published literary works, with defined the terms ‘beneficiary person’, ‘accessible format copy’, ‘permitted entity’, to make it immediately operational. The declaration of invalidity was suspended for 24 months to allow Parliament to enact a permanent legislative solution.[17]

7. Judgment and Ratio Decidendi

The Decision

The Constitutional Court confirmed the High Court’s order. It declared sections 6 and 7, read with section 23, of the Copyright Act unconstitutional to the extent that they limit access by persons with visual and print disabilities to published literary works in accessible format copies. The Court read in its own section 13A, operative for 24 months, rather than the High Court’s section 19D reading-in.[18]

Ratio Decidendi

The ratio decidendi can be understood in two parts. First, a copyright statute that applies uniformly to all persons without accommodating those with print and visual disabilities constitutes unfair discrimination under section 9(3) of the Constitution, where its practical effect falls disproportionately on a marginalised group. Second, a court may craft a reading-in remedy under section 172(1)(b) of the Constitution to cure such a defect, but that remedy must be carefully limited to the constitutional problem identified and cannot import a broader legislative provision that goes further than the proven case.

8. Critical Analysis

8.1 Significance of the Decision

Blind SA is the Constitutional Court’s first copyright judgment, and the first anywhere in the world to treat the absence of a disability exception in copyright law as unfair discrimination.[19] This confirms that intellectual property law is subject to constitutional scrutiny, something the Copyright Act had escaped for over forty years. The judgment also signals that South Africa’s IP regime cannot be read in isolation from its international human rights obligations, drawing on the Marrakesh Treaty even without ratification, consistent with section 39(1)(b) of the Constitution.

8.2 Implications and Impact

Practically, libraries, educational institutions, and disability organisations can now legally produce accessible format copies of published literary works without seeking copyright owner consent. The judgment also pushed Parliament to resume work on the Copyright Amendment Bill, which was passed by the NCOP in September 2022.[20] The litigation achieved what more than twenty years of legislative reform had failed to accomplish.

8.3 Critical Evaluation

The reasoning on unfair discrimination is convincing. The idea that formally equal treatment can constitute unfair discrimination through its differential impact is well-established after Harksen v Lane NO,[21] and applying it to copyright, where the practical consequences for disabled persons are severe, makes doctrinal sense.

That said, Professor Forere raises a legitimate concern: the Court relied heavily on the Marrakesh Treaty despite South Africa not having ratified it.[22] While section 39(1)(b) permits courts to consider international law, there is a real difference between using a non-ratified treaty as interpretive guidance and anchoring a remedial reading-in in its provisions. The Court does not engage this tension directly.[23] The section 13 analysis is also somewhat incomplete; the Court itself concedes the adaptation/reproduction boundary was hard to draw on the submissions before it. Both points leave room for future litigation to develop the law further.

9. Conclusion

Blind SA concerns copyright exceptions and the meaning of legal equality. The Constitutional Court held that copyright law can discriminate, and that when it does, the Constitution demands a remedy. The judgment confirms that no statute, however longstanding, sits outside the reach of constitutional scrutiny.[24]

Its most lasting contribution is the principle that formally neutral legislation may still be unconstitutional if it places a disproportionate burden on a vulnerable group. Questions remain about the proper use of non-ratified international treaties and the scope of adaptation rights, but these are for future courts and Parliament to resolve. For now, Blind SA stands as a reminder that the transformative promise of South Africa’s Constitution reaches into every corner of the law, including parts that have gone unchallenged for decades.

10. Reference(S):

Cases

Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33; 2023 (2) BCLR 117 (CC)

Blind SA v Ministry of Trade, Industry and Competition and Others (14996/21) [2021] ZAGPPHC 871 (7 December 2021)

Harksen v Lane NO 1998 (1) SA 300 (CC)

Legislation

Constitution of the Republic of South Africa, 1996

Copyright Act 98 of 1978

Copyright Amendment Bill [B13B-2017]

International Instruments

Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3

International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3

Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (adopted 27 June 2013, entered into force 30 September 2016)

Secondary Sources

C Okorie ‘Intellectual Property and the Constitutional Court of South Africa: Lessons from the Deployment of Adjudicative Strategies’ (2023) 54 International Review of Intellectual Property and Competition Law 1508

M Forere ‘The Ramifications of International Law in South Africa: Blind SA v Minister of Trade, Industry and Competition (CCT 320/21) [2022] ZACC 33’ (2024) 27 Potchefstroom Electronic Law Journal 1

M Forere ‘Does Article 4(1)(a) of the Marrakesh Treaty Require Limitation to Adaptation Rights?’ (2024) 27 Potchefstroom Electronic Law Journal

B Zungu ‘Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33’ (2022) 10 South African Intellectual Property Law Journal 131

PO Juma ‘The Marrakesh Treaty and the African Copyright Laws: Lessons for the African Region from Blind SA v Minister of Trade, Industry and Competition’ (2022) 10 African Disability Rights Yearbook 231

[1]Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33; 2023 (2) BCLR 117 (CC) (‘Blind SA’).

[2]C Okorie ‘Intellectual Property and the Constitutional Court of South Africa: Lessons from the Deployment of Adjudicative Strategies’ (2023) 54 International Review of Intellectual Property and Competition Law 1508, 1510.

[3]Copyright Act 98 of 1978 (‘the Act’) ss 6, 7 and 23.

[4]Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled (adopted 27 June 2013, entered into force 30 September 2016).

[5]The CAB was passed by Parliament in March 2019 but referred back to the National Assembly by the President on 16 June 2020 under s 79(1) of the Constitution.

[6]Blind SA v Ministry of Trade, Industry and Competition and Others (14996/21) [2021] ZAGPPHC 871 (7 December 2021).

[7]Constitution of the Republic of South Africa, 1996 (‘the Constitution’) s 172(2)(a).

[8]B Zungu ‘Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33’ (2022) 10 South African Intellectual Property Law Journal 131, 135. Globally, fewer than 10% of published works are available in accessible formats.

[9]The Constitution ss 9(3), 10, 16(1)(b), 29(1) and 30.

[10]Blind SA (n 1) para 17.

[11]Blind SA (n 1) paras 30–31.

[12]Blind SA (n 1) paras 33–37. The CRPD (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3; ICESCR (adopted 16 December 1966, entered into force 3 January 1976) 993 UNTS 3.

[13]Blind SA (n 1) paras 38–42.

[14]Blind SA (n 1) paras 55–66.

[15]Blind SA (n 1) paras 80–92. The Court noted at para 84 that the line between adaptation and reproduction ‘is hard to draw’.

[16]Blind SA (n 1) paras 95–105.

[17]Blind SA (n 1) para 112 (order).

[18] Blind SA (n 1).

[19] Blind SA (n 1).

[20]PO Juma ‘The Marrakesh Treaty and the African Copyright Laws: Lessons for the African Region from Blind SA v Minister of Trade, Industry and Competition’ (2022) 10 African Disability Rights Yearbook 231.

[21]Harksen v Lane NO 1998 (1) SA 300 (CC).

[22]M Forere ‘The Ramifications of International Law in South Africa: Blind SA v Minister of Trade, Industry and Competition (CCT 320/21) [2022] ZACC 33’ (2024) 27 Potchefstroom Electronic Law Journal 1, 8–12.

[23]M Forere ‘Does Article 4(1)(a) of the Marrakesh Treaty Require Limitation to Adaptation Rights?’ (2024) 27 Potchefstroom Electronic Law Journal.

[24] Blind SA (n 1).