My Take

Fair use or fair dealing? Here's a fair case for postponing Hong Kong's new copyright law

PUBLISHED : Tuesday, 15 December, 2015, 12:33am
UPDATED : Friday, 04 March, 2016, 2:59pm

In a rare display of leadership, the DAB's second-in-command has rallied his troops to support a proposed amendment to the government's copyright bill by rival pan-democratic lawmakers.

Holden Chow Ho-ding, vice-chairman of the Beijing-friendly Democratic Alliance for the Betterment and Progress of Hong Kong, is backing the pan-dems' demand to change the government's "fair dealing" clause to "fair use". Chow's appeal for bipartisanship is praiseworthy, especially in this hostile political climate.

However, I am agnostic about the supposed advantages of "fair use", which allows more leeway for unauthorised users of copyright materials, than "fair dealing". Nor do I think this single compromise, assuming the government goes along at the 11th hour before tomorrow's vote in the legislature, is enough to overcome the pan-dems' many other objections.

Contrary to some reports, including a few from this paper, fair use is not more widely practised around the world than fair dealing. In fact, it's probably the other way around.

The US' legal tradition in copyright and intellectual property protection has long relied on the famous "fair use" doctrine.

However, Commonwealth countries such as Canada, Britain, Australia and New Zealand have all used fair dealing as their standard reference, as have India, Singapore, South Africa and Japan, as well as many if not most countries in Europe.

Fair dealing is confined to specific categories spelled out in the laws of the countries concerned, such as research and study, review and criticism, personal use, news reporting, parody and/or satire.

The difference between fair use and fair dealing is not binary, but along a spectrum. Some countries are more relaxed about some types of unauthorised copyright usage such as parody than others, even if they adopt fair dealing as standard.

Much depends on the legal practices and the importance and influence of the creative industries in the relevant countries.

There is no a priori reason that fair dealing is more damaging to free speech or inferior to fair use as a legal standard. But the government has done a very poor job explaining its own bill. In light of this and many other questions surrounding the bill, there is a case for postponing it for further public debate.