Artists find clause for suspicion

During their recent campaigns to become the city's next chief executive, the two leading candidates found themselves targeted by web-based parodists who took their political satire into uncharted realms.

In one of the more notable examples of the new art form, Leung Chun-ying's face was posted on former state leader Mao Zedong's head in a jibe at Leung's alleged pro-communist background.

The face of Henry Tang Ying-yen, the former chief secretary, was plastered on various movie posters, including one which replaced Meryl Streep's in an advertisement for the film The Iron Lady.

Effective as these parodies may have been at poking fun at politicians, they would have exposed their artists to criminal charges had the government's long-delayed copyright protection bill been on the statute books in its current form.

Copyright protection laws suitable for the internet age may be several years overdue in Hong Kong, but opponents of the bill that was delayed in the Legislative Council this week say the government should scrap the bill altogether and start from the scratch the process of drawing up new legislation.

What most offends critics of the proposed Copyright (Amendment) Ordinance is its wide scope and imprecise definitions, leading to its delay for up to three weeks after pan-democrats Albert Chan Wai-yip and Wong Yuk-man filed 1,400 amendments in an attempt at filibustering.

The bill is well-intentioned, according to Charles Mok, the founding chairman of Internet Society Hong Kong Chapter, an industry watchdog. But he is concerned over clauses that will expose those who modify material for parody.

'Its pitfalls for parody have spoiled the proposed legislation, which should otherwise have been a welcome move to keep Hong Kong up to date with the international development of copyright protection,' said Mok.

Commerce Secretary Greg So Kam-leung told Legco that no clause in the amendment bill was aimed at parodies that modified previously copyrighted material, a process also called 'secondary creation' and found in visual arts, literature, film, music, and other art forms.

'[Greg] So was right in a way,' said Mok. 'But the problem is parodies are already illegal in the current law, which internet users realised only when the amendment ordinance was proposed.

'They want to use this opportunity to remove the sword hanging above their heads,' said Mok. 'Sharing parody creations on YouTube is contravening the law at the moment, too ... even if only [a] few face legal actions.'

According to the Commerce Bureau's brief to Legco, the proposed law seeks to impose criminal sanctions on the distribution of infringing copies, where the distribution is so extensive 'as to affect prejudicially the copyright owners'.

Under the status quo, a copyright infringement is a criminal offence if it is for profit or when it leads to significant damage to the copyright holder.

The proposed amendments seek to extend the law to cover all media by introducing 'a new exclusive right for copyright owners to communicate their works through any mode of electronic transmission', according to the brief issued when the bill was tabled for vetting in June.

In defining 'prejudicial' damage, a non-exhaustive list of factors have been distilled from the infamous 'Big Crook' case in 2005, in which an unemployed Hong Kong man became the first person in the world convicted for uploading three movies using peer-to-peer, file-sharing BitTorrent technology. These factors include the value of the original work and how the original market for the product could have been affected by the upload.

In a deal with pan-democrats, the government has proposed limiting prosecution only to cases involving 'non-trivial' economic damage. But Mok said the government should fully consult the public and consider fully exempting parodies, while keeping delays to a minimum.

'Hong Kong is a decade late in the development of copyright protection. The [United States] established the Digital Millennium Copyright Act long ago. It is not worthwhile seeing the whole bill overthrown because of the government's reluctance to exempt parodies,' Mok said.

For all the protection that copyright laws may offer their creations, among those most concerned about the pending amendments are the members of the cultural sector, particularly artists with works published online.

'Ninety-nine per cent of my works [are parodies] or recreations,' said Chow Chun-fai, a winner of the Sovereign Asian Art Prize. His works include the acclaimed movie-paintings series which recreate the images of celluloid classics and TV footage on canvases.

Chow says his works seek to challenge society's view of imagery. In the past, people saw landscapes, and these were reflected in paintings - 'but now we see images from the mass media like film and TV', he said.

'The currently discussion [of the amendment of the bill] has been focusing on the digital platform, but parody isn't just about the internet,' the artist says.

Chow is one of around 1,600 people who signed a petition against the bill, which they see as the 'Article 23 of the cyber world', referring to the national security clause in the Basic Law that was withdrawn in 2003 after 500,000 took to the streets in protest.

The petitioners, who have called for a news conference today on the amendment bill, complain that it seeks only to defend the interests of copyright owners, and ignores the process of artistic creativity.

If Andy Warhol was still alive and living in Hong Kong under such a law, he might have been jailed for his reprints of images of Mao Zedong, Marilyn Monroe and Campbell's Soup cans.

Signatories include performance artist Ger Choi Tsz-kwan, Anthony Wong Yiu-ming of the Tat Ming Pair band and songwriter Adrian Chow, filmmaker and lyricist Calvin Poon Yuen-leung, visual artists Lam Tung-pang and Pak Sheung-chuen, comic artist and lyricist Siu Hak, alongside scholars such as Stephen Chan Ching-kiu, the dean of arts and cultural studies at Lingnan University. Others include arts administrators, media practitioners, designers, students and art lovers from Hong Kong, Macau and even New York City.

The petitioners are concerned not only about the consequences of the proposed law for parody published on digital platforms. Ger Choi, who is also the chairwoman of the Arts Development Council's arts education group, argues that the new amendment will also give the authorities the right to persecute anyone and disrupt the process of creation.

Ger Choi said that in her discussions on the proposed law with government officials, she was told that she should ask permission from the rights holder if she planned to publish a work based on another copyrighted work.

'So do I have to ask [Leonardo] da Vinci? [The bureaucrats] act as if they come from Mars,' she said.

Jessey Tsang Tsui-shan, who has just won the award for best new director at this year's Hong Kong Film Awards with Big Blue Lake, also signed the petition.

'Creative freedom belongs to the city. The government should not interfere,' Tsang said.

The filmmaker said she agreed that film investors and distributors wanted to protect their interests, and that parody played an important role in modern times. 'I welcome parody of my works, personally,' Tsang said.

Chow, the Sovereign Asian Art Prize winner, says self-censorship on artistic creation will intensify if the bill is passed in its current form.

'Exhibition spaces will probably choose not to exhibit a certain work, worrying that they might be falling into a trap,' Chow said. 'And what if I want to write a new song based on my old song, but the old song's right has already been sold to someone else? How is it possible to avoid this?'

Chinese University's cultural management programme director, Oscar Ho Hing-kay, calls the proposed law 'an absurdity'.

He says that parody is a common way for artists to make a response to art history, both in the West and in the East, from pop art icon Warhol to famous 20th-century master Zhang Daqian, whose reproductions of classical Chinese paintings have been collected by world-class museums.

Ho says that bureaucrats pledging to push ahead with the amendment are '[relying] on their ignorance rather than awareness of creativity. They are asking us to believe what they say. But no, I believe in what is written in the legal system'.

Ronny Tong Ka-wah, the Civic Party legislator and veteran barrister, who joined his pro-democrat colleagues in proposing amendments to the copyright bill, said a blanket exemption for parody was impractical, as parody was inherently a copyright infringement.

'A complete exemption of secondary creation creates a conflict of interest, because, technically, secondary creation violates the copyright of the original content creator,' said Tong. 'The amendment I proposed adds a high threshold for better protection of internet users. If the amendment law is completely scrapped, users would not be offered better protection since the current law related to parody is vague.'

Tong had said a delay in the bill's passing could buy time to push for an even higher prosecution threshold against parody.