The government is due to introduce into the Legislative Council on Wednesday a new copyright amendment bill. In addition to reviving the less controversial aspects of the old bill, which was shelved in 2012 following widespread opposition, this new bill will introduce fair dealing exceptions for parody, satire, caricature, pastiche, quotation and comment on current events.
Although the present bill has struck a more appropriate balance than its predecessor, internet users remain deeply disappointed. Their reaction is understandable, considering that the government has declined to introduce a broad exception for non-commercial or non-profit-making user-generated content. This exception was supported by more than 97 per cent of the public comments received in the last consultation.
The bill also raises five other concerns. First, it fails to maximise Hong Kong's ability to use the copyright system to strengthen its creative industries. Britain recently introduced a large number of exceptions into its copyright law. By contrast, the Hong Kong bill incorporates about half of these. Thus, if the UK exceptions turn out to be beneficial, Hong Kong will only get half of these benefits.
Second, it is frustrating to find the government reluctant to introduce new exceptions unless they have become part of UK law. How can Hong Kong maintain its status as a world-class city if it remains a follower?
Third, some of the distinctions in the bill do not make much common sense. For example, a user performing a song in a YouTube video will avoid legal liability if she sings the song out of tune - perhaps as a comment on the original artist's singing technique. That performance, however, may attract legal liability if she sings the song well. It seems perverse and commercially undesirable to have a law forcing fans to poke fun at artists they love.
Fourth, it is ill-advised to attach legal liability to internet users mostly to enable copyright owners to sue third-party intermediaries with commercial interests. Even though these intermediaries should not hide behind internet users to avoid compensation to copyright owners, this does not mean that the law should hold these users liable for non-profit-making activities. Even if copyright owners are concerned about market loss, there is limited harm in creating an exception for internet users to conduct non-profit-making activities that do not substitute the owners' markets (as long as these owners can seek compensation from third-party intermediaries).
Finally, the bill is insensitive to the needs in the current political environment. Content generated by internet users, including secondary creations that do not comment on current events, can play an indispensable role in fostering a critical political culture. Although copyright owners note that US courts have found limited conflict between copyright and free speech, they tend to ignore the courts' reliance on a robust fair-use regime to explain away this conflict. Hong Kong does not have such an expansive regime. Nor does the United States have such urgency for developing a wider political discourse.
In sum, it is not difficult to understand why internet users remain deeply disappointed in the new copyright amendment bill. Nevertheless, digital copyright reform has been under discussion for more than seven years. Even if copyright owners and internet users still cannot agree on how copyright law should handle the non-profit-making use of copyright works online, it is time that they worked together to address the most important part of this reform - namely, to reduce large-scale online copyright piracy.
Peter K. Yu holds the Kern Family Chair in Intellectual Property Law at Drake University Law School in the United States and was a visiting professor at the University of Hong Kong Faculty of LawMore on this: