Author name: Denise Nicholson

In its landmark ruling on 7 May 2025, the Constitutional Court has opened the doors to access to information and accessible formats for people with disabilities.  It has also paved the way for South Africa to ratify the 2013 Marrakesh Treaty. For decades, Blind SA has been lobbying against the ‘book famine’ and lack of provisions for blind and visually impaired persons in the current copyright law.  This discrimination has gravely affected their social and economic development, education, work and leisure opportunities and other aspects of their lives, including lack of equal access to reading material that sighted persons have taken for granted.  The law has in fact made copying and reuse of copyright work in accessible formats illegal, without permission from rightsholders, essentially criminalising people for needing to access information.  Historical Context: 1999 – 2019 As early as 1999, the library and educational sectors raised concerns at a multi-stakeholder workshop convened by the Department of Trade and Industry (DTI) about the discriminatory nature of the current copyright law against people with disabilities.   DTI proposed amendments to the Act in 2000. More restrictive provisions were proposed for education, libraries and archives, and minimal provisions were included for people with visual impairments.  A task team mandated by the South African University Vice-Chancellors’ Association of South Africa (SAUVCA) and the Committee of Technikons (CTP), predecessors of University South Africa (USAf), challenged the proposed amendments to the Act in Parliament.  These proposals were subsequently withdrawn and not included in the Amended Copyright Act of 2002, which then only addressed needle time for musicians.  The task team had already succeeded in stopping more restrictive draft Regulations being passed in 1998. From 2002 until 2009 there was a legislative impasse with regard to copyright reform. Due to many problems in the music industry, the Department of Trade and Industry decided to commence a process of reform in 2009.  It commissioned various research studies and established a Copyright Review Commission to investigate ongoing problems in the music industry.  The DTI convened workshops for stakeholder groups and input was given on various aspects of the copyright law. To ensure a holistic approach to the 1978 Act, the DTI was provided with important documents and resources relating to education, libraries and other information services, and persons with disabilities, and other relevant issues sourced from WIPO, WTO, UNESCO, Creative Commons, the International Federation of Library Associations and Institutions (IFLA), Electronic Information for Libraries (EIFL)’s Model Copyright Law, and from regional copyright project findings and local organisations. Appropriate clauses and provisions were also submitted to the DTI relating to countries with progressive copyright laws where developed countries were enjoying benefits that South Africa, a developing country, still did not have in its copyright law. In July 2015 the DTI published a draft Copyright Amendment Bill for public comment and it was also discussed at a multistakeholder workshop convened by the DTI in Gauteng.  After receipt of many submissions and necessary edits and amendments, the Bill was forwarded to Parliament in 2017.   The Bill included Section 19D with appropriate provisions for people with disabilities, including those who are blind, deaf, dyslexic or suffer from other disabilities that prevent them from accessing information. In 2013, South Africa strongly supported the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled. The Treaty came into effect in 2016, but South Africa did not ratify it, stating that its national copyright law would need to be amended first to include appropriate provisions for people with disabilities.  Some years later, it confirmed that once the Copyright Amendment Bill has been signed, it will move to ratify the Treaty.  Parliamentary Approval; Presidential Rejection The first Parliamentary process took over two years but the Bill was finally passed by both Houses of Parliament  in 2019.  It was then referred to the President for assent, but he did not act on the Bill for a period of 15 months.  The President was being lobbied strongly by rightsholders, collecting societies and multinationals, and was receiving unprecedented pressure from the US Trade Representative’s Office (USTR) and the EU  Commission, to stop the Bill. This led him to decide not to sign the Bill and to refer it  back for Parliamentary review on 16 June 2020.  He requested a review of certain clauses, including fair use, exceptions for education and academic activities, libraries, archives, museum and galleries, and temporary copies, questioning their constitutionality.  Notably, these reservations did not include Section19D. This also led to the Portfolio Committee on Trade and Industry agreeing to send the Bill for retagging from a Section 75 Bill (National) to a Section 76 Bill (Provincial), which resulted in a drawn-out process through all nine Provincial Legislatures.  Blind South Africa Litigation According to previous commentary, “Recognising that the referral would result in an inordinate delay, Blind SA approached the Gauteng High Court in 2021, primarily seeking to have the Copyright Act declared unconstitutional to the extent that it “limits and/or prevents persons with visual and print disabilities accessing works under copyright that persons without such disabilities are able to access”. Blind SA also sought an order reading in the provisions of the amendment bill that sought to give effect to the Marrakesh Treaty”.[1] On 7 December 2021, the Gauteng High Court ruled that the current Act is unconstitutional as it relates to people with blind and visual impairments . On 21 September 2022, the  Constitutional Court confirmed this ruling and made a landmark decision, marking the first time in its 27-year history that it addressed a copyright law case. The Court recognised that the absence of provisions for accessible formats in copyright law constitutes disability discrimination.  This ruling set a global precedent, affirming that copyright law, like any other law, must be interpreted in a way that aligns with constitutional principles, including the rights of people with disabilities.  As an interim solution, the Court read-in a temporary provision (Section 13A) into the current Act, allowing for the creation