Authored By: Thandeka Yende
University of South Africa
Introduction
South African students increasingly rely on pirated educational material to complete their studies. While piracy infringes copyright law, it also reflects systemic barriers to accessing prescribed educational material. Poverty, inadequate funding, unreliable distribution of study material and the high cost of textbooks continue to hinder students’ ability to realise the constitutional right to education. Even successful candidates of South Africa’s largest bursary scheme find it more economical to spend their textbook allowance on a laptop and download pirated textbooks online. Although piracy may seem to provide an immediate solution, it has long-term consequences for authors and publishers and does not allow sustainable educational publishing. The resulting tensions raise an important constitutional question: how is South African law balancing copyright protection with the right to education?
The article examines the balance between copyright law and the constitutional right to education in South African law, given South African students’ growing reliance on pirated educational material.
The article will begin by examining the constitutional provisions of the rights concerned, as well as examining the development of case law on the matter. A critical analysis will be provided before concluding with a summary and proposed direction for future legal development.
Contemporary Educational Context
South Africa’s contemporary educational landscape is characterised by a legacy left by the past apartheid/colonial regime, which systematically excluded black South Africans from equal educational and socio-economic opportunities. In this context, education is increasingly becoming a prerequisite to securing employment and building a dignified life. Therefore, access to copyrighted educational resources may in future become a constitutional element to achieving the right to education.
Legislative Framework
3.1 The Balance
Intellectual property, such as copyright, is recognised by the courts as a right of property protected by Section 25 of the Constitution of the Republic of South Africa (“the Constitution”). However, this protection is not absolute. Property law serves both to protect private interests and to advance public interests. In this case, there is a balance between the exclusive rights of authors and publishers and the public right to education. The constitutional provisions are given legislative effect in the Copyright Act 98 of 1978 (“the Copyright Act”).
3.2 Guiding Precedent
In Blind SA v Minister of Trade, Industry and Competition and Others (“Blind SA ”), Blind SA challenged the Copyright Act for limiting access by persons with visual impairments to published works in accessible format replications such as Braille, large prints and audio formats. The impugned provisions criminalise accessible formatting and have left people with visual and print disabilities with the inevitable decision to break the law to access resources.
The Constitutional Court ruled in favour of the declaration of invalidity, suspended the declaration for 24 months for amendment and formulated an interim relief reading in of a temporary provision to the Act. Blind SA establishes an important precedent for balancing copyright protection against constitutional rights requiring access to protected works.
3.3 Development of the Copyright Amendment Bill
The Copyright Amendment Bill (“the Bill”) has been in contestation since the commencement of its amendment in 2013, reviewing proposed amendments to advance the protection of copyright and give effect to constitutional rights affected by a lack of access to these protected materials. Two particular proposals to advance constitutional rights include the “fair use” scheme, which seeks to allow the use of copyright creations without the permission of the creator for purposes such as research, private study or personal use; as well as the educational exception, which seeks to mitigate the effects of poverty on access to educational materials.
In 2026, the President launched an ex parte application. referring the Bill to the Constitutional Court to revise the constitutionality of certain proposals that have been intensely opposed, particularly the “fair use” and educational exceptions provision, which was argued to reduce the protections afforded to copyright holders. The Court examined the provisions in question and made the following majority judgment regarding the balance between copyright law and the right to education:
The “fair use” scheme is constitutional, which serves a clear public benefit and does not arbitrarily limit copyright law.
The education exceptions are constitutional, as it ensures that the government fulfils its constitutional obligations in respect of the right to education.
Critical Analysis
The prolonged legislative process reflects the complexity of balancing competing constitutional rights. Leaning too much into the protection of copyright laws would only escalate the issue of not giving effect to crucial constitutional rights. Leaning too much into the protection of the other constitutional rights, such as the right to education, would also work against the very rights trying to be protected by making publishing more expensive and less generative.
While a significant barrier to regulating this balance is systemic barriers that fail to sufficiently fulfil their rights and responsibilities, the delay in enacting the Act leaves both private and public interests uncertain and vulnerable.
The judiciary has largely fulfilled its constitutional role. In Blind SA, the Court thoroughly looked at the issues and not only declared the unconstitutionality of the Act but created a reading-in as interim relief to give the visually impaired concerned certainty. As well as in Ex parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill (“Ex parte President of the Republic of South Africa”), the Court looked at the issues carefully and found a fair balance between the rights concerned. The greater constitutional concern is the continued delay in the legislative process. Section 237 of the Constitution states that all constitutional obligations must be performed diligently and without delay. This illustrates why the Court is so important in its ability to protect vulnerable parties like the visually impaired and, in future, students, from further systemic failures due to legal uncertainty. While there are real tensions between these rights that would appreciate careful handling by all organs, more urgency is needed to protect the affected parties from the legal gap created.
The implications of this gap and the behaviour of the organs of state mean that the future of the legislation is uncertain. Continued legal uncertainty is likely to drive students’ reliance on pirated material even further, while authors and publishers will increasingly turn to litigation to ensure that they remain in business.
Conclusion
Conclusively, the balance between copyright laws and the right to education remains one of the most difficult balancing exercises in South African Law. However, there has been steady development on the part of the judiciary. With Blind SA, the case gave context to the application of the Copyright Act and set a precedent to advance the rights of those who are vulnerable and face systemic challenges, such as blind persons. Ex parte President of the Republic of South Africa clearly defined the constitutional limitations to copyright protections that give effect to the rights of students facing academic disparity. However, prolonged legislative enactment of the court findings continues to create uncertainty for both students and copyright owners. Greater urgency in implementing constitutionally compliant legislation is necessary to provide legal certainty. Meanwhile, collaboration between government, educational institutions, libraries, educational organisations and copyright holders may assist in mitigating the consequences of legal uncertainty for both copyright holders and students.
Bibliography
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