With the rapid technological development, it is getting easier and easier for people to gain access to copyrighted materials, to download, alter and modify their content, and to share the copies online. To strengthen copyright protection in this technological era, the Hong Kong government has launched a consultation process in 2006 to make amendment to the Copyright Ordinance.[1] The Copyright (Amendment) Bill 2011 and the Copyright (Amendment) Bill 2014 were introduced in June 2011 and June 2014 respectively, yet were both boycotted by the legislative councilors and were shelved afterwards. Until 2021, the government has failed to amend the copyright laws, leading to a huge gap between the local laws and the international laws. In 2022, the Copyright (Amendment) Ordinance 2022 has finally been passed by the Legislative Council, and the law will take effect on 1 May 2023. This paper will first discuss the reasons behind the failure to amend the law in the past, then look into newly enacted ordinance and some criticisms of it, and at last provide a possible suggestion to promote a more user-friendly copyright law to lessen people’s concerns.
The Failure of Amending the Law
In both the 2011 Bill and the 2014 Bill, a new provision was introduced, stating that it is an offence to communicate a work that constitutes copyright infringement to the public. This has led to strong opposition from the people, especially after the anti-national education protest in 2012 and the Occupy Central Movement in 2014, where people’s distrust towards the government grew. The amendment bills were named ‘Network Article 23’, where ‘Article 23’ refers to Article 23 in Basic Law. Article 23 of the Basic Law requires the Hong Kong government to ‘enact laws to prohibit any act of treason, secession, sedition, subversion, theft of state secrets, to prohibit foreign political bodies from conducting political activities in the Region, and to prohibit political bodies of the Region from establishing ties with foreign political bodies’. Facing fierce opposition due to the draconian nature of this article, the government has failed to fulfill its responsibility to enact laws as required until today. The amendment bill was analogized to this article, as people fear that it will limit free speech and allow the government to arrest people who produce derivative work that criticizes the government.[2] The legislators from the pro-democratic camp therefore used the tactic of filibustering and skipped meetings such that meetings were adjourned for lack of quorum, forcing the government to shelf the bills.
Copyright (Amendment) Ordinance 2022
The composition of the Legislative Council has changed largely after the change of the electoral method imposed by the Chinese government. The Copyright (Amendment) Bill 2021 was therefore passed. Section 118 (8B) of the Ordinance provides that ‘a person commits an offence if the person infringes copyright in a work by communicating the work to the public to such an extent as to affect prejudicially the copyright owner’. Despite that the Ordinance provides protection for fair dealing with works for the purposes of criticism, review, quotation, parody, satire etc. The definitions of these purposes are unclear and people fear that their derivative work which criticizes these government will not be categorized as having one of the purposes. Further, the coverage of the fair dealing protection is not wide enough. For example, one who posted a video sing a song by Taylor Swift himself/herself without using any sound recording could infringe on the right of communication to the public, attracting both civil and criminal liability.[3]
The government responded that it will not took action to arrest anyone, unless the copyright holders file a claim to the court. This, however, fails to ease people’s concern, as they bear a risk of getting sued even with the government’s promise, especially when the government is seen as untrustworthy.
An Open-ended Catch-all Fair Use Provision?
To develop a more user-friendly copyright law in Hong Kong, it is recommended that the fair use provision could be changed to an open-ended, catch-all fair use provision. Hong Kong Copyright law is hugely influenced by laws of foreign countries such as UK and US. In the past, there used to be a split between US and the Commonwealth countries, where fair use is seen as an open and flexible standard while fair dealing is rather rigid and restrictive.[4] Nevertheless, as seen in Canadian copyright laws, fair dealing is seen differently as a users’ right that should be given large and liberal interpretation in CCH v Law Society of Upper Canada. In addition, while Canada only has a fixed list of purposes, exceptions are also included to address issues such as user-generated content. In comparison to that, the Hong Kong provision is too restrictive, failing to balance between rights of the users and the copyright holders. An open-ended catch-all fair use could provide assurance to the people, while protecting the rights of the copyright holders by making sure that the purposes of the work are fair by analyzing them in accordance with the factors listed in the provision, which are highly similar to those under Canadian and US law.
[1] Jojo Y.C. Mo, “The Copyright (Amendment) Bill 2014 in Hong Kong: A Blessing or a Curse?” (2017) 38:2 Statute Law Review 211.
[2] Peter K. Yu, “The Quest For A User-Friendly Copyright Regime In Hong Kong” (2016) 32:1 American University International Law Review 283.
[3] Ibid.
[4] Ariel Katz, “Debunking the Fair Use vs. Fair Dealing Myth: Have We Had Fair Use All Along?” in Shyamkrishna Balganest et al, eds, The Cambridge Handbook of Copyright Limitations and Exception (Cambridge, UK: Cambridge University Press, 2021) 111.
Professor Festinger, I would like to submit this post as my LAW 422 final paper. Thank you.
Copyright & Social Media
Communications Law