SOUTH AFRICA Trends and Developments Contributed by: At van Rooy, Ursula Baravalle and Stuart Miller, KISCH IP
registrar within three months from the filing of the application. Infringement is now a criminal offence punish- able by a fine and/or imprisonment not exceed- ing ten years. Latest Developments in Copyright Recently, the Constitutional Court in Blind SA v Minister of Trade and Industry and Compe- tition and Others 2022 BIP 518 (CC) came to the conclusion that provisions of the Copyright Act, No 98 of 1978 (“the Copyright Act”) were unconstitutional in that they unfairly discrimi- nated against persons who are blind or visually impaired. In the judgment by AJ Unterhalter, the following was stated: “It was common ground between the parties that, apart from the dispute as to what Section 13 of the Copyright Act permits or requires the min- ister to do, the exclusive rights conferred upon owners of copyright that subsist in literary works has drastically restricted the availability of liter- ary works in accessible format copies for the use of print and visually disabled persons. That is so because, on the undisputed evidence before us, the obligation to secure the authorisation of the owners of the copyright in literary works to make published literary works available in accessible format copies (the requirement of authorisation) has led to a scarcity of such works. Whether this comes about because authorisation is declined or on account of the difficulty and delay in iden- tifying those from whomauthorisation is required matters not. The effect is the same. Print and visually disabled persons struggle to access lit- erary works in accessible format copies. Some- times particular literary works are not available; sometimes the format is not optimal. More often,
and particularly for poor persons in this class, the scarcity is absolute, and few works are avail- able at all. It takes little imagination to appreciate what that scarcity, relative or absolute, does for the life chances of those with print or visual disabili- ties. That some have nevertheless achieved sub- stantial success is testament to their personal fortitude. It detracts not at all from the reality that those with print and visual disabilities suffer from a scarcity of access to literary works that persons without these impairments do not. This scarcity goes to the heart of the consti- tutional challenge that Blind SA brings before this court. The protection that the Copyright Act affords owners of copyright in literary works gives rise to a sharp disparity between those with print and visual disabilities, and those who do not suffer these impairments. Whatever limitations the exclusive rights conferred by the Copyright Act may cause to those without dis- abilities who would access literary works, they bear no comparison to the deprivations suffered by those with print and visual disabilities. The rights to incorporeal property that the Copyright Act protects may not become an instrument to disadvantage a class of persons who have the same need to have access to literary works that persons without impairments enjoy. The require- ment of authorisation leads to the scarcity of lit- erary works in accessible format copies. That is unfair discrimination on the grounds of disability that s 9(3) of the Constitution prohibits”. This clearly marks a shift from a common stance, shared by many jurisdictions, that if it is out of print, it is not necessarily out of copyright, and that access to copyrighted works is not an enti- tlement.
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