SOUTH AFRICA Trends and Developments Contributed by: At van Rooy, Ursula Baravalle and Stuart Miller, KISCH IP
In the order given in this case, the founding of constitutional invalidity was suspended for a period of 24 months, allowing Parliament to effect necessary changes to the Copyright Act. Additionally, in a rare case of adding to legisla- tion, the Constitutional Court added Section 13A to the Copyright Act, which effectively empow- ers blind and visually impaired persons to copy works into a format accessible to them. The matter is still being challenged in court by advocacy groups for blind and visually impaired persons in South Africa but, regardless, the bal- ance of rights appears to have shifted in favour of persons who are perceived to be unfairly dis- criminated against. The use of constitutional provisions to overcome copyright rights allows the introduction of an action not dissimilar to those against the abuse of patents or registered designs, albeit without the mandatory licencing agreement.
Further to the above court judgment, Parliament has drafted a Copyright Amendment Bill that inter alia seeks to introduce provisions to pro- mote accessibility to persons with disabilities. This shift, which some regard as controversial and an erosion of the rights protecting and incentivising creative activities, aligns copyright rights with other intellectual property rights, such as patents and registered designs, where abuse (in the form of limiting access to an invention or design) is overcome by a statutory remedy.
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