The government has finalized and sent over a newly amended Copyright Bill to the Legislative Council, and it is likely to be passed in the middle of next year. On the face of it, the bill looks technical and harmless, and government officials argue that the revised law will give better protection to copyright owners, and therefore nurture a better, safer environment for the creative industry. But the bill has also stirred fear among some internet users, who have provocatively dubbed it the “Article 23” of the internet. Under the new bill, copyright infringement could be classified as a criminal act, and so the critics are worried about being prosecuted if they produce mash-up works and parodies and post them the internet. The Copyright Ordinance has been in effect in Hong Kong since 1997, and it has been amended before. But this time around, the government has suggested making any unauthorized distribution of a work, regardless of the mode of electronic transmission (such as YouTube or BitTorrent), illegal under the amended law. At the same time, offenders would be criminally liable if the unauthorized distribution “prejudicially affects the copyright owners”; or if they make a profit from the infringement. That means the government is tightening up the punishment for offenders, because previously, copyright owners could only seek reparations through civil action. By making the act of copyright infringement criminal, the government can now prosecute offenders even if the copyright owners themselves do not seek legal action against them. The Copyright Bill has stirred controversy in the online world. Nowadays, it’s very common for internet users to create parodies, or other types of derivative works, based on all sorts of materials, from photos and movies to music and television programs. “Derivative works are one of the ways to create something. Creation is to express our thoughts, which of course include something that exists now,” says Woo Chi-chung, the spokesman of the Concern Group for Rights of Derivative Works. Woo is an avid fan of animation and comics, and likes to produce mash-up works—for example, lyrics and drawings based on his favorite characters. The government has so far refused to grant exemptions for non-commercial derivative works in the Copyrights Bill—and that’s making netizens worry that their carefree pastime will become threatened for no good reason. “Netizens say that the Copyright Bill is ‘Article 23’ of the internet, because it feels like a knife is hanging above your head. After the law is enacted, it suggests the possibility of criminal offense. We will never be sure whether we will be prosecuted [because of copyright infringement],” Woo says. “The government has suggested five factors for the court to consider [in case of litigation], and one of the factors is the effect on the potential market for or value of the works. Potentiality is something very vague, so how do you define it?” One particular genre of derivative work in particular is now immensely popular and commonplace—and that is political parodies and satire. “[Mash-up] videos on the internet can help people unleash their emotions about the government. They can express their anger and fire criticisms at the government on the net. It is a mobilizing force in society, because it helps people understand politics more easily. It can stimulate political discussion and empower ordinary citizens,” says Howard Lam Tsz-kin, spokesman of the Internet Freedom Concern Group. Given the current political climate, and especially in light of the forceful quashing of recent anti-Beijing protests, netizens are worried (perhaps justifiably so) that the government is trying to expand its reach and silence opposition or criticism posted on the internet—all in the name of protecting copyrights. Though internet users have expressed concern about the new bill, one law professor—who specializes in intellectual property law—says that netizens needn’t worry quite so much. “The copyright law is very complicated… and there is a huge gap between the law and actual application. [But] the fear [held by internet users] is reasonable,” says Alice Lee, Associate Professor in the Department of Law at the University of Hong Kong. Lee says that the terms of the amended copyright law might sound rigid and prohibitive, but netizens might not be as vulnerable to criminality as they imagine. According to Lee, “prejudicially affect” is defined in terms of economic and commercial interests. In other words, as long as you don’t produce works that are a direct substitute of the original, which would take away earnings from the copyright owner, you will not fall under the criminal definition. And Lee thinks that most derivative works do not have a negative impact on sales of the original work. “For example, I make a parody version of Lady Gaga’s song and upload it to the internet. Do you think that this version will indirectly affect the sales of her CD? I don’t think so,” Lee says. “In the case of parodies, people repackage the original work and turn it into something that would only be appreciated by people with a sense of humor. This group of people won’t buy Lady Gaga’s CD. The markets are totally different and there is no conflict.” Lee also argues that derivative work is a new form of creation, and in his view internet users who produce derivative work do not infringe upon existing copyrights even if they use existing images or songs. “There is an important concept of substantiality in copyright law,” Lee says. “It will look into whether the changes [made by netizens in these parodies] will be sufficient to turn derivative works into original works.” Lee says that there will be room for argument once the law passes, and the issue will only be solved when cases eventually get brought to court and lawyers bring up references to past legal cases. Given that she downplays the threat of the bill, would Lee agree to an exemption for parodies? She isn’t too against it, but says that Hong Kong tends to act with more caution due to its legal framework. “The United Kingdom published a report, and their conclusion was that it was not necessary to grant parody exemption because no one would sue people because of parody,” Lee says. “Hong Kong runs a similar system of fair dealing to the United Kingdom. If the United Kingdom does not include parody in an exemption, we also shouldn’t find it urgent to include it.” “Although I demand the government grant exemptions for parodies, I don’t foresee a lot of such cases either,” says chairman of the Internet Society Hong Kong Charles Mok Lai-kwong. “However, it is not our responsibility to think of excuses for the government, to explain why they do so little.” Mok says that a lot of jurisdictions—including the United States, Australia and the European Union—have protected people’s rights to create parodies or satire in law. He also points out that the United Kingdom is now conducting a consultation to include parodies into the existing exempted areas. “Other countries have been giving exemptions to parodies for years, and it has proved to be effective. There is nothing [the government has] to lose,” Mok says. “If we have to wait for the United Kingdom—and you know how slow the government is—maybe we will have to wait till 2016 for another amendment.” A spokesperson from the Commerce and Economic Development Bureau stresses that the dissemination of any parodies or mash-up works on the internet that does not prejudicially affect the copyright owners will not—as the bill is worded at present—qualify as a criminal act. And if we trust the opinions of experts like Lee and Mok, prosecution seems an unlikely end for Hongkongers who create parodies and post them on the web. Perhaps the real problem, then, is that the public’s trust in the government is slowly eroding as more and more evidence emerges that protecting free speech and other civil liberties isn’t as much of a priority as it used to be. Lam put it best, saying that the issue isn’t the law itself but rather the message that it sends about the government’s commitment to individual freedoms: “We are not only talking about laws. We are now talking about the government behind the law. We are talking about if it is a democratic government that respects human rights. It’s not only about our government. The political regime of our motherland is authoritarian, and we are worried about how the [Hong Kong] government would execute it [the bill]. I believe that Professor Lee is right, but she has neglected the political forces at work behind it all. That explains why netizens are worried.” Samples of SAR-casm Who says that Hongkongers aren’t creative? Go online and check out the parody images and videos produced by netizens at forum.hkgolden.com. We’ve dug up some real gems. Go on—have a good laugh! This is a satire of the world-famous oil painting “Liberty Leading the People,” which commemorates the 1830 French Revolution. In this picture, Heung Yee Kuk Chairman Lau Wong-fat is substituted for Lady Liberty. In May, privileged indigenous villagers threatened to lead a revolution—with bloodshed if nessecary— in order to keep the unauthorized structures on their village houses. Of course, such a “revolution” would be led by the King of the New Territories, Lau Wong-fat, head of the Heung Yee Kuk. Obviously, the indigenous villagers didn’t get much sympathy from the public—male villagers are given land by the government on which to build a house, while urban-dwellers pay through the nose for a tiny apartment. We are absolutely amazed by the touch-up skills of the mastermind behind this photo! In late May 2010, the government came up with a campaign named “Act Now” (the slogan in Chinese translates to “raise the anchor”) to drum up support for the 2012 political reform package. However, the public blasted the campaign as a step backwards for democratic reforms. In this picture, the caption says, “The pirate ship weighs anchor,” a statement about how the government is leading the public away from the development of democracy. By the way, how many officials can you recognize in this picture? Answer (from right to left): Donald Tsang Yum-kuen, Stephen Lam Sui-lung, Henry Tang Ying-yen, John Tsang Chun-wah and Tsang Tak-shing. Another Johnny Depp movie mashup! As everyone can see, it’s “Alice in the Wonderland” this time—and our honored Financial Secretary John Tsang Chun-wah stars as the Mad Hatter. In March, Tsang ordered a U-turn in the financial budget after the public complained about the original plan to to deposit $6,000 in the Mandatory Provident Fund account of all its working citizens. After facing immense public pressure, he caved in and is handing out out $6,000 in cash instead. Tsang violated every principle of public finance management in this debacle—hence his comparison to the Mad Hatter.