IGZ 320 - THEME 1.2

Intellectual Property Law and Human Rights

Section 25 of the Constitution (Property Clause)

Section 25(1) states no one may be deprived of property except under a law of general application and no law may permit arbitrary deprivation; Section 25(4)(b) clarifies that property is not limited to land and explicitly includes incorporeal property, allowing trademarks, copyright, and patents to qualify for constitutional protection against arbitrary deprivation.

SAB International v Laugh It Off Promotions (SCA)

Established that trademark protection has not always been kept within legitimate bounds and that IP is not absolute but is one value to be weighed against others such as the right to work, create, compete, talk, write, and imitate freely; trademarks are property but do not enjoy special constitutional status and enforcement must be constitutionally defensible.

National Credit Regulator v Opperman (CC)

Confirmed that a trademark qualifies as property deserving Section 25 protection; drew a crucial distinction between a trademark as a real right enforceable against the whole world and a personal right like an enrichment claim only enforceable against specific parties; stressed that intangible property is vital in modern society and "property" in Section 25 must not be narrowly interpreted.

Moneyweb v Media 24 (HC)

Confirmed that copyright is an IP right protected under Section 25(1); because Section 25(1) allows deprivation under a "law of general application", that law must pass Section 36 (the general limitation clause); the right to reproduce or publish a copyrighted work is not absolute and can be limited if justifiable.

Blind SA v President of the RSA (Blind SA I)

Blind SA challenged Sections 6, 7, and 23 of the Copyright Act which required disabled persons to obtain copyright owner permission before reproducing works into accessible formats; the Constitutional Court declared these provisions constitutionally invalid because requiring permission created a discriminatory barrier violating rights to equality, dignity, education, and access to information; the declaration was suspended for 24 months with an interim reading in of Section 13A.

Blind SA v President of the RSA (Blind SA II)

The 24

Clause 19D of the Copyright Amendment Bill

An authorised entity or prescribed person serving disabled persons may make and supply accessible format copies without copyright owner authorisation by any means including non commercial lending or digital communication; conditions require lawful access to the original work, respect for the integrity of the original work, and that the activity must be on a non profit basis.