Amended law will benefit everyone

Updated: 2015-12-15 07:57

By Ho Lok-Sang(HK Edition)

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Ho Lok-sang writes that the controversial Copyright (Amendment) Bill aims only to serve the interests of the holders of intellectual property rights in HK

The controversy over the Copyright (Amendment) Bill 2014 reflects a great lack of confidence in the government that has built up over the years. This is due to politicians who have been very adept at arousing fears and worries among the public. The Copyright (Amendment) Bill was quickly given the nickname "Internet Article 23" - even though it had nothing to do with the real Article 23 of the Basic Law. The government is portrayed not as a defender of Hong Kong's long-term interests, but as being given the power to find excuses to prosecute political dissenters. Consider the statement given by those who want to vote down the bill: "Netizens, Internet freedom advocacy groups and lawmakers have expressed concerns that it could limit the creation and distribution of all derivative works, including popular parody pictures online, as it does not include an open-ended exemption for 'user-generated content' (UGC), a 'contract override' nor a 'fair use' term."

"Under the new bill to be discussed, netizens could be prosecuted for the offence of obtaining 'access to a computer with the intent to commit an offence or with a dishonest intent'. They may face legal action from copyright owners if they use copyrighted material for remixes."

"After the passing of the proposed amendment bill, the police can lay charges, whereas prior to the passing of the new law, copyright owners need to consider the costs of filing a civil suit so netizens feel relatively safe."

Then consider the government's arguments.

"The government will introduce the Copyright (Amendment) Bill 2014 into the Legislative Council to update Hong Kong's copyright regime to ensure that it keeps pace with technological and overseas developments. The bill also provides a number of copyright exceptions to facilitate reasonable uses of copyright works."

Regarding the exceptions, there are six categories: parody, satire, caricature, and pastiche; commenting on current events; quotation; temporary reproduction of copyright works by online service providers, which is technically required for the digital transmission process to function efficiently; media shifting of sound recordings; giving educational instructions and facilitating daily operations of libraries, archives, and museums.

Nevertheless, lawmakers from the Labour Party, Civic Party and People Power have vowed to vote against the bill if the proposed amendments - which allow broad protection against prosecution - are not accepted.

It is common knowledge that the intent and substance of the laws should be as clear as possible. According to one analysis (Internet Policy Review), "The lack of a stable definition of user-generated content may be politically advantageous for all stakeholders: Rights holders choose to highlight the potential for direct infringement and piracy, while platform owners and users can evoke the creative and yet non-commercial status of UGC while it nevertheless circulates within a capitalist system of exchange. To evoke the metaphor of the illusionist: Each of the stakeholder groups attempt to draw the audience's attention away from one aspect of user-generated content and toward another." That is to say, a truly broad-brush protection against prosecution would destroy the intent of protection of copyright. As much as other stakeholders wish, when a case is brought to court there will be much uncertainty, as all parties wish the law to be interpreted in their favor. On the other hand, if UGC is to be "open-ended", that will defeat the purpose of the copyright law altogether.

It seems to me that the government's proposed exemptions will at least clearly spell out the way prosecutions will be conducted.

Regarding concerns that the police can lay charges, the proposed legislation will, according to government documents, clarify that criminal liability is subject to "causing prejudice to the copyright owner" and ensuring that the courts will examine all the circumstances of a case and in particular the economic prejudice. Given that our courts are totally independent in their deliberations, we can rest assured that without actually causing damage to the copyright owner no one will be held criminally liable.

As to the subject of fair use, it has been pointed out that in practice in the US "fair use cannot be reduced to a certain quantity of words or number of lines; it is, rather, a flexible multi-factor analysis that can be subjective and tends to differ from case to case and court to court." So, even if "fair use" is allowed, there is no absolute protection against prosecution.

The fact is jurisdictions around the world are all trying to find the best trade-off between copyright protection and freedom of expression using copyrighted materials. The proposed amendment bill is intended to serve the interests of copyright holders and not the interests of the SAR government or those of the central government. Calling it "Internet Article 23" is absurd. But copyright holders should be reminded that allowing some degree of freedom of using the copyrighted materials gratis is in their own interests. After all, copyrighted materials would be worth nothing if they were not known. Striking a good balance will require trust and wisdom from both sides.

Amended law will benefit everyone

(HK Edition 12/15/2015 page12)