Marrakesh Treaty – Centre on Knowledge Governance

The South African Copyright Amendment Bill at the Constitutional Court: Notes from the Presidential Referral of the Bill (Part I)

Sanya Samtani / 27 May, 2025

On 21 and 22 May 2025, the South African Constitutional Court heard the matter of Ex Parte President of the Republic of South Africa: In re Constitutionality of the Copyright Amendment Bill and the Performers’ Protection Amendment Bill. The hearing in these ‘Referral proceedings’ was significant as it was only the second time in South Africa’s history that the President triggered an exceptional constitutional mechanism to refer a Bill to the Constitutional Court for a decision on the constitutionality of certain aspects instead of signing it into law. The Court’s decision in this case will determine the fate of a long drawn-out legislative reform process aiming to transform and modernise South Africa’s apartheid-era copyright law and bring it into the constitutional era. The Court adjourned to deliberate on the matter and the judgment will be handed down in a few months. In this blog post, I briefly outline the arguments advanced by the parties and amici curiae and highlight the issues for determination by the Court. While the Performers’ Protection Amendment Bill is also at issue, I focus on the Copyright Amendment Bill [B13F-2017] (‘the Bill’) as the aspects of the Performers’ Protection Amendment Bill that are at issue are those that incorporate the Copyright Amendment Bill. The hearing focused almost exclusively on the Copyright Amendment Bill. This blog post is in two parts: Part I deals with the procedural history that led to the Presidential Referral of the Bill and sets out an overview of the referral proceedings, and Part II deals with the issues raised during the hearing and sets out the next steps. The long and winding road to the Constitutional Court For those coming to this issue afresh, South Africa has been in the process of reforming its copyright law for over a decade, if not longer. The current Copyright Act 98 of 1978 is old-order legislation, enacted prior to democracy. While the South African Constitution allows for apartheid era legislation to be saved if it can be interpreted to be consistent with the Constitution, the Copyright Act freezes pre-constitutional economic and social relationships in the creative industry and knowledge production processes. While some parts of it may be read compatibly with the Constitution, other parts of it are in need of urgent reform. As the South African Parliament has recognised in the memorandum on the objects of the Bill, the existing arrangements have had adverse impacts upon artists due to the “power imbalance, vulnerabilities and abuse taking place in the music industry”, people with disabilities, educators and researchers. In addition to addressing this, the Bill seeks to make South African copyright law consonant with “the ever evolving digital space” as the current Act is “outdated and has not been effective in a number of areas”. In doing so, the Bill clarifies in some detail the powers and functions of the Copyright Tribunal and, for the first time, regulates collective management organisations. The procedural history leading up to the Constitutional Court hearing is central to understanding why the enactment of the Bill as a whole is subject to the Court’s determination of two narrow and specific issues. I address this briefly. Parliament passed the Copyright Amendment Bill [B13B-2017] in March 2019. The President, instead of signing the Bill, triggered a constitutional mechanism to refer the Bill back to Parliament citing procedural and substantive constitutional reservations in June 2020 (‘2020 Referral letter’). At that stage, concerned about pervasive and persistent copyright discrimination being further exacerbated by the delay, Blind SA – a disability rights organisation by and for people with visual and print disabilities – launched litigation against the state for interim relief pending the conclusion of the legislative reform process. Consequently, in 2022, the Constitutional Court in Blind SA v Minister of Trade, Industry and Competition (‘Blind SA I’) held that the Copyright Act 1978 was unconstitutional to the extent that it unfairly discriminated against people with visual and print disabilities and read-in a court-crafted remedy to rectify this discrimination with a deadline of two years from the date of judgment for Parliament to enact legislation. The remedy drew heavily from the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’), on the basis that this treaty was in the process of being domesticated through copyright reform, though South Africa had not yet acceded to it. In the meanwhile, over a period of approximately four years, Parliament considered and addressed the President’s constitutional reservations and additionally gave draft legislative effect to the Court’s judgment in Blind SA I passing the Copyright Amendment Bill [B13F-2017] in February 2024. The deadline set by the Constitutional Court in Blind SA I lapsed in September 2024, along with the court-crafted remedy, and although Parliament passed the Bill, the President did not take action in response to Parliament’s amended version. Blind SA then urgently sought from the Constitutional Court a re-reading in of the same remedy or any other remedy that would be just and equitable following the lapsing of the remedy. Days later, the President opted for an exceptional constitutional mechanism by which he referred the Bill to the Constitutional Court (‘2024 Referral letter’) citing that two of his 2020 constitutional reservations had not been ‘fully accommodated’ by Parliament (‘the Referral proceedings’ discussed below). The Court passed an interim order in December 2024 reading in once again the remedy in Blind SA I until the final determination of the matter – which took place on 7 May 2025. In Blind SA v President of the Republic of South Africa (‘Blind SA II’), rather than further extending the Blind SA I remedy, the Court took note of the significantly advanced legislative process and the fact that the President did not have any reservations concerning the provisions regarding people with disabilities and, instead, read-in those provisions and the relevant definitions from the Bill into law, until such time as amended copyright law came into force. This ensured that

SA CONCOURT OPENS DOOR TO ACCESS TO INFORMATION FOR PEOPLE WITH DISABILITIES IN COPYRIGHT CASE

Denise Nicholson / 15 May, 2025

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

Africa: Copyright & Public Interest, Blog

South African apex court recognises the “constitutional imperatives of equality and dignity for persons with disabilities” in landmark copyright judgment

Sanya Samtani / 8 May, 2025

On 7 May 2025, the Constitutional Court of South Africa handed down judgment in Blind SA v President of the Republic of South Africa and Others [2025] ZACC 9 (‘Blind SA II’). The judgment read-in an immediately operational accessible format shifting provision for people with all disabilities across the spectrum as well as expressly providing for the cross-border exchange of accessible materials without the requirement of authorisation. In doing so, it gave effect to South Africa’s constitutional and international obligations to ensure that people with disabilities do not experience unfair discrimination (and other rights violations) – in this case, by the operation of copyright legislation. It also transformed South African law to align with the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled (‘Marrakesh VIP Treaty’) and, by addressing this provision to people with all disabilities, it went beyond Marrakesh’s “floor”, to fulfil its obligations under the South African Constitution and the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD). 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