The bill as it stands would benefit big tech corporations and leave copyright owners and creatives at the mercy of these technology giants, opponents argue.
The introduction of the fair-use principle used in the US is one of the controversial issues raised in the debate. Fair use is the right to use a copyrighted work under certain conditions without permission of the copyright owner.
For Stephen Hollis of the SA Institute of Intellectual Property Law, the copyright bill is not compliant with some international conventions.
He said both bills had material flaws to which “quick fixes” cannot be applied by mere correction of wording.
He said they identified 19 sets of provisions, affecting up to 50% of the text introduced to the Copyright Act, that may have constitutional implications or amount to treaty compliance issues. Also, no proper legal assessment was done by the DTI to measure the bills for compliance with the constitution and international treaties.
Hollis also raised the lack of or inadequate socio-economic impact assessment to measure the impact of the bills on the creative industries and the subsectors.
He recommended that the National Assembly engage independent senior counsel who are experienced in constitutional law and intellectual property for a comprehensive legal opinion on identified issues.
In a joint submission, academics from Wits, North West University, UCT, Fort Hare and the University of Oxford believed that tweaking some provisions of the proposed law could fix some of the constitutional concerns.
In an opinion presented to the committee they said by introducing words like “fair” before “royalty” could ensure authors and performers are compensated.
“We believe that without including the word 'fair' they are likely to continue being cheated. It's important to refer to fair royalty,” said Wits' Malebakeng Forere.
They commended the committee for some of the work already done on the bill but suggested removing certain exceptions and adding protections that will ensure the law is consistent with fair practice and aligned with international practice.
The Library and Information Association of SA (Liasa) supported the bill and called on parliament to approve it once again and to send it back to Ramaphosa for urgent ratification.
Liasa's Nikki Crowster said the bill had very helpful and appropriate exceptions and limitations to address the needs of libraries and archives and their users in the digital world.
The current act restricts digitisation, conversion from old to new technologies, and format-shifting for preservation and access purposes, she said.
She cited the devastating fire that gutted UCT's Jagger Reading Room in April as having highlighted the reality of having no provisions for digital curation in law when valuable and irreplaceable collections burnt to ashes.
Crowster said many of the sections in the bill were adopted from the EIFL Model on copyright law and clauses from other progressive copyright laws around the globe and her organisation believed it was in line with SA's constitution and international treaties and conventions.
She said “practical” limitations and exceptions provided in the bill that enable and empower libraries and archives to carry out their full statutory mandates, without having to clear copyright and pay high fees for everything related to the digital environment are some of the reasons they support it.
Public hearings continue on Thursday.