The Constitutional Court declares provisions of the Copyright Act unconstitutional

The Constitutional Court of South Africa has declared the Copyright Act unconstitutional to the extent that it limits or prevents persons with visual and print disabilities from accessing works protected by copyright, in ways that persons without such disabilities would be able to access.

In an application brought by Blind SA, the Constitutional Court was asked to consider and grant relief that would allow people who are blind, visually impaired or otherwise print disabled, access to printed materials that they would otherwise not be able to access without infringing the copyright that subsists in such materials.

All parties to the proceedings agreed that there is a lacuna in the copyright regime that results in print-disabled people having inadequate access to copyright works and essentially set out to achieve the same goal, but through different approaches.

Carefully striking a balance, the Court has ultimately read in a temporary provision in the Act that will allow the making of accessible format copies of literary works in certain specified circumstances without needing to obtain the consent of the copyright owner.  An accessible format copy means a copy of the work in an alternative manner or form that allows a print-disabled person access to the work, for instance a version in braille or an audiobook.

Parliament has been granted a period of 24 months within which to remedy the unconstitutionality and all eyes will now once again turn to the controversial Copyright Amendment Bill.

Adams & Adams represented Prof. Owen Dean as Amicus Curiae in the matter.

Werina Griffiths

Partner | Trade Mark Attorney

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