Despite amendments, many fear controversial law will restrict creative freedom
VIVIENNE CHOW AND STUART LAU
PUBLISHED : Wednesday, 09 December, 2015, 1:19pm
UPDATED : Wednesday, 09 December, 2015, 1:19pm
Activists clash over the bill in Mong Kok. Photo: Edward Wong
A sense of déjà vu could well come tonight. At Tamar in Admiralty, thousands of Hongkongers are expected to gather outside the Legislative Council building and government headquarters, chanting slogans and protesting against the government.
But the scene that could provoke comparisons with last year’s Occupy protests centres on a different theme. This time it is a protest against a new copyright law dubbed the “internet’s Article 23”, in reference to the national security law of 2003 that was aborted.
Many view the new bill as a clampdown on freedom of expression and creation, instead of a move to strengthen cultural industries, as the government and the industries have argued.
Today’s Legco debate on the Copyright (Amendment) Bill 2014 is the result of over a decade of controversy stemming from loopholes in the existing law, which make it hard to fight piracy on the internet. The government has been under fire from the global business community because the copyright law is outdated and lags behind international standards.
The government tabled a bill in 2012 but withdrew it after strong opposition. The now-amended bill includes six exemptions that are meant to allay freedom-of-expression concerns.
The new bill has caused a rift among pan-democratic parties, whose major support comes from the younger generation, which is especially critical of the proposed law.
The Labour Party issued a statement yesterday afternoon making it clear that it would not back the bill and would join the filibuster initiated by radicals. But the Democratic Party has become the target of criticism after announcing that it would not join the filibuster. The Civic Party has not taken a clear stance on the copyright bill.
Here’s a look at the bill and the debate over it:
What are the exemptions proposed by the government?
Alongside making the law technology neutral, so as to cover copyrighted materials in the digital realm, the bill also has exemptions to balance the rights of copyright owners and the general public, particularly people who produce derivative works such as pictures, videos and music and share them on the internet.
Ada Leung Ka-lai, Hong Kong’s director of intellectual property, said derivative material based on copyrighted works would be exempted from criminal and civil liabilities if it was created for the purposes of parody, satire, caricature, pastiche or commentary on current events.
“We have taken references from all over the world, and we offer more exemptions than many other countries,” Leung said.
Copyrighted works that are temporarily reproduced by online service providers for technical reasons will also be exempted, as will sound recordings for educational purposes.
Leung said those who share links on social media, adapt videos, songs or pictures, stream video games or create fan fiction would not be guilty of a crime.
“Under these exemptions, the public can relax and should not be worried about falling into any purported legal traps,” Leung said. “We target large-scale copyright infringement, not individual users.”
Why are online users so wary of the new bill?
Some fear they will be guilty of a crime if their derivative works do not fall under the exemption categories.
He said the government did not explain in detail the potential legal traps in crediting the source of an original copyrighted work.
Choy also said that despite the exemptions, the creator of a derivative work had to provide “sufficient acknowledgement” of the original work.
“How much is ‘sufficient’?” Choy asked. “Do I just name the author of the original work? But what if the author of the work is not the copyright owner of the work?”
He said if it was a song or a clip from a film that was being used, there were questions over whether the entire production team, including the name of the director, scriptwriter and production company, would have to be listed.
“If that’s the case, then our pictures will be written over with these credits,” Choy said.
Choy added that the liability over sharing performances of cover versions of songs, and the creation of fan fiction and cosplay outfits based on anime and comics, were unclear under the new amendment.
“The discretion rests in the hands of copyright owners,” Choy said.
Some have argued that the exemptions were not to meant to increase freedom, but to force people to be creative in a certain way, by using the fear of legal consequences to get people to self-censor their creations.
“The exemptions are setting the boundaries, confining creative minds in a bird cage,” said Chris Ng of the Progressive Lawyers Group.
Three pan-democratic lawmakers say there are overseas examples to borrow from. But their suggested amendments – based on such jurisdictions as Canada, the United States and Singapore, and supported warily by some online users – are unlikely to be approved.
People Power lawmaker Raymond Chan Chi-chuen proposed that the government adopt the US legal principle of “fair use”, as opposed to the Hong Kong model of “fair dealing”.
Under the fair dealing regime, copyright exceptions only apply to the use of materials if such use is for one of the prescribed purposes in the law. The fair use doctrine, on the other hand, does not specify the purpose of the use so long as the use is consistent with several “fairness” factors.
In order to better protect online users that create parody works, Cyd Ho Sau-lan, of the Labour Party, called for the new bill’s inclusion of an exception for users of a copyrighted work who are engaged in online dissemination of user-generated content (UGC). This includes altered pictures or videos, mash-up works, video clips of cover versions of songs or songs with rewritten lyrics, fan-made videos and streaming of video-game playing.
The Law Society agreed that the concept of UGC was worthy of consideration in light of overseas developments.
Legal-sector lawmaker Dennis Kwok, meanwhile, asked the government to study the British example, where exceptions for parody, caricature and pastiche include a provision restricting contractual terms from overriding or limiting such exceptions. The British government has explained that the contract override provision gave users, consumers and businesses certainty and clarity. In the absence of such restrictions or limitations, critics worry that commercial contracts could be concluded to circumvent copyright exceptions.
READ MORE: Opponents to amendments of Hong Kong’s copyright law misunderstand the spirit of the law
IT sector lawmaker Charles Mok backed these new additions to the bill. However, Ma Fung-kwok, the legislator for sports, performing arts and culture, argued otherwise. He said the British law would interfere with the freedom of contracts and with legitimate business dealings.
Why is the government reluctant to adopt these measures?
The Commerce and Economic Development Bureau appears to be taking a wait-and-see approach to the suggestions for UGC and contract override, while it is strongly against Chan’s call for “fair use”.
Fair use, the department said, represented “a fundamental revamp of our copyright regime” and had to be considered in the light of a consultation exercise.
As for UGC, the government has reservations about its vagueness and lack of definition. There is no widely accepted definition of UGC at the international level, officials told the Legislative Council earlier.
“As far as the administration is aware, only Canada has introduced the UGC exception in her copyright legislation,” according to a Legco paper. “As the matter is still subject to debate, the administration considers it prudent not to legislate with reference to the concept of UGC in the current exercise.”
But what has attracted most criticism from pan-democrats is the government’s description of the contract override provision as “highly controversial”.
The British government had been criticised for underestimating the adverse economic impact of the contract override provision, Hong Kong officials said. They added that the responsible British minister had said that the impact would be evaluated within five years.
David Wong, deputy secretary for commerce and economic development, said the bill needed to be passed urgently. But he pledged to begin conducting a review of the amendments proposed by pan-democrats right afterwards.
Kwok said that a number of the provisions in existing ordinances in Hong Kong had already overridden the freedom of contracts, such as the Employment Ordinance and Disability Discrimination Ordinance.
http://m.scmp.com/news/hong-kong/politics/article/1888931/hong-kong-copyright-bill-sparks-battle-over-rights
