The Hong Kong Government published a public consultation paper on 24 November 2021 on updating Hong Kong’s copyright law.
The main purpose of this consultation is to revisit certain proposed amendments under the previous proposed legislative reform in 2014, as well as to invite comments to other proposed amendments in response to new challenges presented by technological advancements, with the aim of bringing Hong Kong in line with international practices.
Background – the 2014 proposed legislative reform
By way of background, the 2014 proposed legislative reform covered the following key areas with a view to modernising Hong Kong’s copyright law regime in the digital environment:
- Communication rights: to allow copyright owners a technology-neutral exclusive communication right to publish their works to the public e.g. streaming.
- Criminal liability: to introduce offences that mirror criminal sanctions already available against distribution of infringing copies of works.
- New copyright and fair dealing exceptions: to cater for caching data, media shifting and a wide range of day-to-day Internet activities for the purposes of parody, commenting on current affairs etc.
- Safe harbour: to provide a defence regime for online service providers’ liability for copyright infringement on their platforms.
- Additional damages: to provide courts with the power to award additional damages having regard to the circumstances of the infringement.
Issues covered in the current Consultation Paper
In the current Consultation Paper, the Government invites the public’s views on the following main topics:
Copyright exceptions – exhaustive or non-exhaustive approach?
The current Copyright Ordinance exhaustively provides exceptions to unauthorised use of copyright works, i.e. only these situations will be exempted from infringement.
One alternative is to adopt a non-exhaustive approach (e.g. the “fair use” regime in the US), where the court determines whether the use of the copyright work for the particular purpose is an infringement taking into account all relevant circumstances. The Government’s current position is to maintain the exhaustive approach as it will provide more certainty to copyright owners and users. The Government also comments that most jurisdictions adopt the exhaustive approach.
Contract override – should parties be restricted from excluding or limiting the statutory copyright exceptions
Under the common law, parties are generally free to enter into contracts and agree among themselves the use of copyright works, including whether the statutory exceptions apply to the parties.
Some jurisdictions, such as the UK and the EU, morphed its laws to prohibit parties’ freedom to exclude or limit certain copyright exceptions, including those in relation to the use of computer programmes and databases, print disability and educational use. The main rationale behind is to protect users’ rights, especially in cases where users have a lower bargaining power than the copyright owner when entering into the contract.
The Government’s current preference is to not interfere with the freedom to agree contractual terms between the parties.
Specific regulations on illicit streaming devices?
Illicit streaming devices are devices that give users access to unauthorised copyright works on the Internet, for example, set-top boxes. Given the prevalence of illicit streaming devices, there have been suggestions that specific provisions should be introduced into the legislation to regulate the issue. Advocates for such change say that this could give legal certainty to this specific issue and facilitate enforcement.
Against this backdrop, the Government’s position is to maintain the status quo. The Government comments that there are already provisions in the existing Copyright Ordinance which could provide protection against illicit streaming devices.
Judicial site blocking mechanisms – yes or no?
In recent years, site blocking orders have been granted to copyright owners in many jurisdictions. These orders require online service providers to “shut down” their website and/or prevent platform users from accessing infringing contents. On the other hand, while these blocking orders can expedite enforcement processes, the cost of compliance has always posed big concerns for online service providers.
The Government is keen to update the copyright law regime in order to equip copyright owners with adequate tools to combat online piracy. On the other hand, the Government is also aware that the current law already provides for general injunctive relief already – for instance, where there is evidence of large scale infringing activities originating from identified online locations, copyright owners may consider seeking an appropriate injunction from the court.
In the absence of evidence suggesting the general injunctive relief mechanism is insufficient protection, the Government’s current position is that it is not necessary to introduce a copyright-specific judicial site blocking mechanism at this point in time.
The Consultation Paper also invites comments on the following emerging topics:
Should copyright term of protection be extended?
Whether specific copyright exceptions for text and data mining should be introduced?
Are specific provisions for artificial intelligence and AI created works necessary?
The Government is now inviting views from the public on the above issues. The consultation period ends on 23 February 2022.
It has been many years since the Government last sought to introduce similar substantive legislative amendments to the copyright law - we consider that this is a valuable opportunity for all stakeholders to put forward their views to help shape the future developments of Hong Kong’s copyright law regime.
Authored by Eugene Low, Charmaine Kwong and Carrie Yuen.