Pan-dems’ proposed changes to Hong Kong copyright bill too broad, says Anthony Tong
Copyright Tribunal deputy chairman shares doubts on suggested exceptions to controversial law
The three exceptions that the pan-democrats seek to add to the new copyright bill are too broad, according to Copyright Tribunal deputy chairman Anthony Tong Tat-hay, who sought to allay web users’ concerns over civil and criminal lawsuits.
Instead of opposing the bill, which will be tabled to the Legislative Council on Wednesday, he added, the public should accept it and then continue to press for further consultation as already pledged by officials.
“It is rare for officials to make such a pledge. I’m sure the public will continue to exercise scrutiny on their future timetable,” Tong, a managing partner at Robin Bridge & John Liu Solicitors, told the South China Morning Post yesterday.
READ MORE: Hong Kong DAB leader pushes pan-democrat copyright amendment
Internet users fear the loss of freedom of expression, saying the government’s proposed exceptions – parody, satire, caricature, pastiche, reporting and commenting on current event and quotation – do not provide sufficient leeway.
In response to such concerns, the pan-democrats proposed to include fair use, exemptions of user-generated content and contract override in the bill.
But Tong said the Hong Kong law’s adoption of the British model for specifying what acts are to be exempted under a “fair dealing” doctrine is better than the US approach of a blanket “fair use” exemption, which internet users say offers the most protection.
“The advantage is also a disadvantage. ‘Fair use’ lacks certainty and will therefore be litigation-prone,” Tong said.
The pan-democrats’ suggestion has been dramatically supported by a key member of the biggest pro-government party, who vowed on Sunday to galvanise support among lawmakers of the Democratic Alliance for the Betterment and Progress of Hong Kong.
The advantage is also a disadvantage. ‘Fair use’ lacks certainty and will therefore be litigation-prone.
But DAB lawmaker Tam Yiu-chung said yesterday he had explained to Holden Chow Ho-ding, the vice-chairman of the DAB, that these proposals were “not new” and had already been considered by the bill committee. The party would continue to oppose the pan-democrats’ amendments, Tam said.
Another proposed exemption based on the fledgling Canadian model of “user-generated content” (UGC) presents copyright owners with a legal hurdle in terms of proving their case, Tong said.
Under UGC, any use that is non-profit-making is tolerated, but he noted that materials uploaded to social networking sites do have the potential for monetisation when they become popular.
“It is imprudent to adopt UGC as it is still a guinea pig overseas,” Tong said. “As responsible lawmakers, when it comes to a new law, they should not rush into it.”
READ MORE: Hong Kong copyright bill explained: Why are people so concerned about this?
The third proposed exception of contract override, which would restrict contractual terms from overriding exceptions for parody, caricature and pastiche, would not directly affect end users, Tong said.
He added that in the amended bill, the criminal sanctions are much clearly defined, which offers much better protection for users.
Tong considers it unlikely for ordinary web users to face a criminal complaint.
“It is not worth the loss of PR value for the big businesses,” he said. “The Customs has always been conservative. The high bar for a conviction means the Customs would be afraid of a statistically poor record if they take those cases without a high chance of success.”
Additional reporting by Joyce Ng
