Shot in the arm for Hong Kong creative industries
By making copyright law technology-neutral in its latest amendment, Hong Kong will be able to catch up with international standards and be better equipped to fight large-scale commercial internet piracy that robs creators of their just rewards.
Cultural and creative industry insiders say the sector contributed 5.1 per cent to the city’s GDP – compared with the 5 per cent contribution of the sluggish tourism industry – and the updated law will lay an important foundation to foster growth of the creative economy.
The most important feature of the Copyright (Amendment) Bill 2014 is that it grants a technology-neutral exclusive right to copyright owners to communicate their works through any mode of electronic transmission, says Ricky Fung, CEO of the International Federation of the Phonographic Industry.
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He says that under the current copyright law, copyright owners can only report cases to Customs – the law enforcement agency of copyright infringements – if they can find physical copies of pirated works, such as books, videos in DVD or VCD, or audio CDs.
“But electronic distribution [of pirated works] is ill-defined,” Fung says.
In 2005, Hong Kong internet user Chan Nai-ming, known as “The Big Crook”, was convicted of illegal mass distribution of copyrighted works via BitTorrent peer-to-peer file sharing technology, making it the world’s first criminal case against the use of BitTorrent technology.
Chan uploaded three movies and was jailed for three months.
Today a great deal of internet piracy is conducted via streaming, where users do not need to download or create a copy of a copyrighted work in order to enjoy it, says Thomas Tang, a member of the executive committee of the Hong Kong Comics and Animation Federation.
“Even if we report the case, Customs cannot do anything about it, because streaming does not involve any physical copies,” he says.
For Fung: “The concept of technology-neutral describes the behaviour of the internet world and it includes all sorts of communications to the public.”
Fung says the technology-neutral concept was first raised in the 1990s when it was included in the World Intellectual Property Organisation’s Copyright Treaty, which was concluded in 1996 and enforced in 2002.
But Hong Kong has lagged far behind, say industry players. The review of copyright law has been going on since 2006 and it has still not been amended.
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Industries estimate they have lost billions of dollars over the years. The music industry says turnover dropped from HK$604 million in 2002 to HK$300 million in 2012. A total of HK$600 million vanished from comic book sales as revenue plunged from HK$700 million in 2007 to HK$100 million last year.
The government tabled a proposal but withdrew the bill in 2012. Two years later it put forward the bill again, introducing six exemptions.
Fung says another highlight of the 2014 amendment is the establishment of “safe harbour” for online service providers, as it limits the liabilities for copyright infringement activities happening on their service platforms.
“The amended law targets the upload source, not users or online service providers.”
He says that even under the new law, Customs can only act on copyright owners’ complaints.
“Sometimes a copy of a copyrighted work could be conceived with a licence agreement. If Customs go after such a licensed copy, Customs could fall into a legal trap as well,” Fung says.
Sam Ho, managing director of the Hong Kong International Screen Association, says the amendments are to make Hong Kong more competitive on the world stage.
“The creative industries will never want to do anything against the public – they are our bosses,” he says.
