November 24 2021

Hong Kong to revive bill bolstering copyright law as minister warns satire, parodies must toe national security line

Source: SCMP

Push to change existing legislation comes after government failed twice before

High time city catches up with rest of world in updating its copyright regime, minister says

Hong Kong is resurrecting a bill expanding intellectual property protections that opposition lawmakers have blocked twice before, with officials saying it is high time the city catches up with the rest of the world in updating its copyright regime.

The government on Wednesday launched a three-month public consultation on the proposal to update the Copyright Ordinance, which is expected to be submitted to a newly elected Legislative Council in 2022.

Secretary for Commerce and Economic Development Edward Yau Tang-wah noted that three rounds of major consultations on strengthening copyright protections had been carried out since 2006, and previous efforts to pass the bill were met with filibustering by opposition lawmakers.

“It is most unfortunate that Hong Kong’s copyright regime is over a decade behind international developments,” he said. “We believe that it is high time to revive the copyright review exercise.”

Updating the copyright regime would help transform the city into a hub for intellectual property trading as outlined by the chief executive in her policy address and the central government in its latest five-year plan for the nation, Yau added.

The government’s proposal, based on the Copyright (Amendment) Bill 2014, is again offering exemptions to the education sector, libraries, museums and archives to use protected materials for the purposes of learning.

It also allows the use of protected content for the creation of parody, satire, caricature, pastiche, commenting on current events, and quotation of copyrighted work. It also permits the reproduction of audio recordings in different formats.

“We aim to strike a proper balance between the legitimate interests of copyright owners and users, and serve the best interests of Hong Kong,” Yau said.
“The 2014 version of amendments was a reasonable starting point. It came after rounds of deliberations and went through its second reading at Legco, but couldn’t proceed because of filibustering.”

The government was forced to drop the bill in 2016 after the fierce opposition by pan-democrats in Legco and internet users who mistrusted the aim of the amendments and potential implications for freedom of speech.

But the political landscape has since been dramatically reshaped by Beijing’s overhaul of the electoral system aimed at ensuring only “patriots” held power and which led to the traditional opposition block withdrawing from the coming December 19 Legco election.

Chung Kim-wah, deputy CEO of the Hong Kong Public Opinion Research Institute, said if the proposed bill were largely identical to the 2014 version, the government was confident it would be passed by Legco.

Director of Intellectual Property David Wong said there was no clear-cut definition of what would constitute a work of parody or satire, adding it would be judged by “common sense”.

“It is common for other jurisdictions such as the United Kingdom not to define these types of work,” he said.

Chung added while the new bill would allow people to comment on current events and quote copyrighted works, the lack of clear examples of what constituted an exemption would create ambiguity and fuel the pressure to self-censorship.

Wong stressed that the court would decide whether a copyright law infringement would be treated as a criminal offence by determining the extent of the breach, the economic losses suffered by the rights holders and other factors.

To encourage online service providers to cooperate with copyright owners in combating online privacy, the government will offer a so-called safe harbour provision which will limit the liability of the operators over any rights infringement carried out on their platforms by subscribers.

Lento Yip Yuk-fai, chairman of the Hong Kong Internet Service Providers Association that counts about 30 members, said the industry generally supported the protection from liability when copyright disputes arose between content makers and online audiences.

“Internet service providers have been very cooperative with law enforcement and various parties in combating online piracy and we’ve been doing that for many years,” he said.

“But there are many things we can’t do. For example, there were times when internet service providers could not take down content already online because of technology limitations.”

Kelvin Sin Cheuk-nam, spokesman for the Democratic Party’s information technology and broadcasting policy unit, said he was concerned that works of imitation such as cosplaying and fan fiction were left out of the consultation document.

Under the existing Copyright Ordinance, a person can be jailed for up to four years and fined as much as HK$50,000 (US$6,415) for making, importing, exporting or selling works without the licence of the rights holder.

Anyone who makes, imports, exports, sells or has possession of an item specifically adapted or designed to make copies of an original work can be jailed for up to eight years and fined a maximum of HK$500,000.

Source: SCMP