The aim of the Copyright Amendment Bill 2022 is to aid the economic interests of authors of works whilst simultaneously adapting to technological advancements.  The Bill has proposed various changes to the Copyright Act.  Numerous iterations of the Bill have been promulgated over many years, and there are conflicting views as to whether the Bill in its current form is a good or a bad thing for South Africa.  Many believe that it is progressive because it provides for access to copyrighted works for people with disabilities.  Others, including copyright experts and the owners of the copyright works, view the Bill as problematic, because it can be seen to undermine the rights of such owners to their property and it could place our country in contravention of international treaties.  For instance, the Berne Convention for the Protection of Literary and Artistic Works requires South Africa to give citizens of other member countries the same protection it gives to the owners of copyrighted works in South Africa.   The Bill does not define exactly what would be considered a disability which is problematic.  Some disabilities are not permanent.

In terms of section 25 of the Constitution, the arbitrary deprivation of property is prohibited, which aids the view that author’s and copyright experts’ have on this topic. However this section would compete with the right to equality under section 9 of the Constitution. Ultimately, a balancing act will have to be struck between the two competing rights and the limitations provisions in section 36.

In Blind SA v Minister of Trade, Industry and Competition and Others [2022] ZACC 33 the Constitutional Court confirmed that the Copyright Act is unconstitutional because it infringes the rights of blind and visually impaired individuals, by not affording them accessible format copies of copyrighted works without the permission of copyright owners.  The court found that the Copyright Act in its current form infringes various sections of our Constitution.  The court found that depriving blind and visually impaired individuals of access to reading material gives rise to prejudice, which is irreparable, incalculable, and difficult to articulate.

In terms of the Bill, the following definitions have been inserted to rectify the rights infringed:

  • ‘accessible format copy’ – entails any copy of a work in a different form than that of the original, to provide attainable access to those with disabilities, which access must be as easily obtainable as it would be for those without such impairments. 
  • ‘disabled person’ – one who has a physical, neurological, intellectual, or sensory impairment and who requires a work to be in such a format for them to use and access the work, as easily as it would be for a person without such impairment.

The Bill makes provision for prescribed person to make available an accessible format copy, for the benefit of an individual with a disability without the authorisation of the copyright owner.  This is subject to conditions, including:

  • the person undertaking to provide the work to the individual with a disability, must have lawful access to the copyrighted work or a copy of the copyrighted work;
  • whilst undertaking to provide a copy of the copyrighted work, the person must respect the integrity of the original work, even though the work will be altered to such an extent to make it accessible to an individual with a disability; and
  • the process, as a whole, must be done on a non-profit basis.

The Constitutional Court held, in order to better weigh up the interests of all stakeholders concerned, the following guidelines, to name a few, must be adhered to.  The subject of the exception must be clearly set out.  This would entail an explanation of the particular works that may be made into accessible format copies.  The court restricted the latter to literary works and artistic works contained in literary works.  This is in line with the Marrakesh Treaty.  The beneficiaries, the extent of the exception, and those authorised to make an accessible copy available, must be clearly defined, to circumvent any uncertainty. 

The Bill cannot be said to be all good or all bad.  The Bill, should however, be applauded for its progressive nature, but the guidelines set out above must be considered. A revised, less broad version should be adopted for the Bill to pass constitutional muster. A potential commercial compromise is for the Bill to be amended to provide that the owners of copyrighted works are remunerated for the use of their property. This concept of “compulsory licensing” is not uncommon in our intellectual property law.