By Lehlohonolo Lehana.
The Constitutional Court has declared certain sections of the Copyright Act invalid, unconstitutional and inconsistent with the rights of persons with visual and print disabilities.
BlindSA took Government to court arguing that the Copyright Act is an “apartheid-era” law that infringes on the rights of persons with visual disabilities.
In a unanimous decision on Wednesday, the Constitutional Court ruled that the Copyright Act is unconstitutional in that it limits the access of visually impaired people to published literary works and artistic works.
The apex court declared that sections 6 and 7, read with section 23 of the Copyright Act 98 of 1978, are unconstitutional, invalid, and inconsistent with the rights of persons with visual and print disabilities, as set out in sections 9(3), 10, 16(1)(b), 29(1) and 30 of the Constitution.
Before the court was a ruling by Gauteng High Court Judge Mandla Mbongwe, made almost one year ago, that the provisions, which imposed a “book famine” for blind and visually impaired people, were an unjustifiable limit to their rights and did not pass constitutional muster.
While Judge Mbongwe ruled that the Act’s gatekeeping provisions, enacted in 1978, would no longer be effective from the date of his ruling, this had to be confirmed by the Constitutional Court.
In May, the court heard argument in the application launched by Blind SA, represented by SECTION27, against the Minister of Trade, Industry and Competition.
The Minister did not oppose the application, conceding that the Act was unconstitutional and the order sought was in line with the amendment bill, currently in the legislative process.
While giving Parliament 24 months to “cure the defect” in the Act, the Constitutional Court ruled that in the meantime certain exceptions would apply to those affected. Those affected included government institutions and non-profit companies which provide education and training, and caregivers. The court ruled that they must have access to written works in an accessible format without prior authorisation.
It spelt out that this order affects people who are blind, or have any visual impairment and are unable to read printed works, or who cannot hold or manipulate a book, or focus or move their eyes.
The Minister was ordered to pay Blind SA’s costs.