Does Article 4(1)(a) of the Marrakesh Treaty Require Limitation to Adaptation Rights? Blind SA v Minister of Trade, industry and Competition (CCT 320/21) [2022] ZACC 33 (21 September 2022)

Abstract

Central to this contribution is Article 4(1)(a) of the Marrakesh Treaty, which the Constitutional Court used to limit the exclusive right of adaptation of copyright owners in the case of Blind SA v The Minister of Trade, Industry and Competition. This contribution finds that while states can add other limitations in their national laws beyond Article 4(1)(a), they can do so relying on Articles 4.3 and 12 of the Marrakesh Treaty while observing the three-step test and their other international obligations. It is, therefore, recommended for our courts to provide clear guidance on normative development, which can, in turn, assist the legislature in its troubled path to domesticate the Marrakesh Treaty ahead of the planned ratification.