Centre for Child Law and UNESCO Chair in Education in Africa argue for education exceptions under the Copyright Amendment Bill
BY CCL TEAM | 20 MAY 2025 | JOINT MEDIA STATEMENT
FOR IMMEDIATE RELEASE
On 21 and 22 May 2025, the Constitutional Court will hear submissions relating to the constitutionality of the Copyright Amendment Bill (CAB) that has been in the making since as far back as 2015. The National Assembly voted for the Bill in 2024 amidst some intense opposition to the Bill. The President instead of signing the Bill into law invoked his presidential prerogative in terms of section 79(4) of the Constitution and referred it to the Constitutional Court raising reservations in respect of the constitutionality of certain aspects of the Bill including whether the educational exceptions – that exempt activities associated with teaching and research from copyright protection – are consistent with international copyright law.
The Centre for Child Law, a public interest organisation, and the UNESCO Chair: Education Law in Africa, a rights-based think-tank, both based at the University of Pretoria, have been admitted as the fifth amicus curiae in the matter. Interestingly, in a crowded house of eight amici that include publishers, authors, musicians, and other creatives, the Centre and the UNESCO Chair are the only amici that have been granted leave to make oral submissions in the Court. At the core of our submissions is the assertion that:
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- while the President considers whether the CAB is compliant with international copyright treaties and whether the exception violates section 25(1), the property right clause, the President is completely silent on South Africa’s obligations in terms international human rights law (IHRL) and its broader constitutional obligations.
- the educational exceptions are necessary to ensure that all learners and students, including the poorest learners and students, have access to learning materials. This category of learners and students, while including persons with print and visual disabilities, constitutes the majority of learners and students in South Africa. Copyright therefore exists as a barrier to access to educational materials for poor learners and students.
- A wide body of evidence, including from UNESCO, makes clear that there is a direct correlation between educational materials and educational outcomes. Research disaggregating data on educational outcomes further highlight that, educational outcomes are worse for learners and students from poorer communities lacking access to basic educational resources. For example, Copyright laws preventing the making copies of textbooks for learners and students make access to knowledge unaffordable.
The Centre and the UNESCO Chair argue that the educational exceptions are necessary for South Africa to comply with its IHRL obligations to ensure the enjoyment of three reinforcing and mutually interdependent rights: The right to education, the bests interests of the child principle and the principle of equality and non-discrimination.
The right to education is recognised in several international and African regional instruments including: the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the African Charter on the Rights and Welfare of the Child (ACRWC) -all of which have been ratified by South Africa thus creating obligations for South Africa as a party to these instruments. IHRL elaborations of the right confirm that the educational exceptions are permissible. The availability of education in IHRL refers not only to the availability of schools but is inclusive of the availability of resources to facilitate teaching and learning. There is also an issue of discrimination because the legacy of apartheid education is still clearly visible in educational spaces, poor learners remain vulnerable and must be protected from discrimination. Furthermore, economic accessibility emphasises the need for education materials to be affordable. This means that financial and legal barriers to accessing learning materials must be removed to ensure that all learners have access, especially those that are vulnerable and poor.
We are of the view that the President’s submissions make it clear that he failed to engage with South Africa’s IHRL obligations. The educational exceptions in the CAB fulfil both, South Africa’s IHRL and constitutional obligations to advance the role of education as a vehicle for transformation in South Africa. Finally, The President’s submissions provide that “the new exceptions are manifestations of a material shift in government policy on the balance that must be struck between the owners of copyright on the one hand and the users of their copyright materials on the other”. In respect of educational exceptions, this shift is not merely a policy choice or a matter of balancing interests – it is a matter of international and constitutional legal obligation.
See a full article by Dr F Veriava and Dr A Strohwald which explains the issue of the educational exceptions in detail: https://www.dailymaverick.co.za/article/2025-05-16-educational-exceptions-in-copyright-amendment-bill-are-mandated-by-international-law-and-the-constitution/
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For more information and media queries, please contact:
Karabo Ozah
Director,
Centre for Child Law
karabo.ozah@up.ac.za
Dr Faranaaz Veriava
Senior Lecturer & Senior Fellow to UNESCO Chair: Education Law in Africa
faranaaz.veriava@up.ac.za
