Consider the following:
- Mainland China and Taiwan have both embraced Creative Commons. There is no Creative Commons Hong Kong.
- Both mainland China and Taiwan have active open source software development communities. Hong Kong does not have an open source geek community to speak of. (UPDATE: Tom asserts in the comments section that this statement is "plain wrong." Would love to hear from others on this.)
- Both the Mainland China and Taiwan are seeing much more Web2.0 innovation than Hong Kong - which appears to have almost none going on. (This is based not only on my own observation. Everybody I know who runs or invests in Internet companies around Greater China says the same thing: the action is everywhere but here.)
Why? And to what extent are these three things connected?
There are no doubt many complicated reasons. Anybody reading this who would like to add their two or three cents in the comments section below, please feel free.
The above three points and two questions - but not too many clear answers - came up in a seminar I attended on Sunday titled Copyright = Creativity? organized by Hong Kong In-Media and the Open Knowledge Project.
Interestingly, both mainland China and Taiwan have developed more similar approaches to copyright, as both have chafed under pressures from the United States to crack down on copyright violations more than they feel is really in their national interest.
Isaac and Titan both pointed out that all countries need to find a middle ground between too little and over-zealous copyright protection. If there is too little (which has been China's problem) everybody steals everything and there is no incentive for creation. If there is over-zealous copyright protection (which many believe is now the situation in the U.S. and in Hong Kong) the law is used to reinforce powerful monopoly control over what is or isn't a "legal" creative work, making it more difficult for individual and entrepreneurial innovation to take place.
Isaac believes that the growth of blogging and the expansion of Web2.0 in China is connected to the fact that the Chinese take an expansive view of content sharing - some might argue over-expansive, but he believes that the "free culture approach," and a generous approach in terms of what constitutes "fair use" and "public domain," has been critical.
We are entering a "post copyright" era, he believes. "The past was an era of macro-creation," with cultural works being produced by big companies. "Now we also have to protect the interests of micro-creators," he says. The problem is that traditional copyright approaches - including Hong Kong's approach - tend to protect the big players while suppressing the emergence of smaller players.
Isaac said that filmmakers in China are realizing that letting netizens sample their films in spoofs and fan-works actually helps drive up box office sales. He said that Chen Kaige withdrew his lawsuit against internet spoofer Hu Ge after realizing that all the spoofing actually generated more buzz around the movie and caused more people to watch it. Treating your fans as criminals is bad business in the long run. A middle ground needs to be found.
Titan Deng put it this way: "What's more important? The development of a rich human culture or protection of individual capital? Where do we find the balance?" What happens when there is too much emphasis on the latter, at the expense of the former?
He made this analogy: If you open a restaurant and serve steak, for which you must supply knives, do you put all your customers under surveillance pre-emptively lest they commit murder with those knives?
For this reason, he said, Creative Commons in Taiwan is growing fast. The Taiwan Intellectual Property Office publishes all of its works under a Creative Commons license, as do a growing number of other groups in Taiwan, including several well-known musical artists.
So why is Hong Kong lagging behind? Charles Mok started by discussing the Hong Kong government's latest Consultation Paper on Copyright Protection in the Digital Environment.
Charles pointed out that the government document never actually defines what the "digital environment" is, though it seems to start from the same premise as the big entertainment companies: that the digital environment is a bad place where people break the law, and which must thus be controlled as much as possible.
Thus, because the government document doesn't approach the digital environment as anything beyond what the entertainment industry perceives it to be, it fails to address any creative or broader alternatives beyond what the industry proposes.
Certainly, a lot of businesses are being hurt by illegal downloading, Charles acknowledged. It's not like the Internet should be a total free-for-all with no law at all. But is a punitive approach - which treats all internet users as potential criminals to be controlled as much as possible - really going to be a constructive approach?
Will that really help Hong Kong economically in the long run? Or will it ensure that Hong Kong's Internet and online media sectors continue to lag even further behind the Mainland China and Taiwan?
Charles pointed out that the Hong Kong government has not adequately considered the concept of "fair use," and how it might be better defined at very least for non-profit and educational purposes. Alternative copyright regimes like Creative Commons are not raised at all in the document.
Nor does the document address the question of how to prevent unfair monopolies, and the use of copyright law by monopolies to prevent competition.
He also pointed out that the Internet is challenging the business model of all kinds of media, and especially the entertainment industry worldwide.
Of course they'd prefer not change their business model. It is inevitable, but draconian IP laws are their last gasp at resisting change. Why should government and law be helping them so much, when such resistance actually holds back innovation and prevents new business models from being conceived, let alone adopted?
Further, Charles pointed out that the government here is willing to criminalize music file sharing, but is not willing to criminalize the use of pirated software by businesses. Why is that?
There was also much discussion of the fact that Hong Kong's ISP's and network operators will be required to hang on to user data for much longer periods of time, and that a result of some of the proposed measures could be greater, less transparent and less accountable surveillance of users - ostensibly to catch IP violators but who knows how else the data gets used.
In sum, Mok's argument is that entrenched industry must not be allowed to dominate and define the entire conversation about copyright in Hong Kong. Other voices must be brought into the mix in a way that is more balanced, not just as an afterthought. Or it will be to Hong Kong's long-run detriment.
UPDATES: For more on Mok's critique of the government consultation paper, read HK govt focuses on enforcement in IP legislation in Computerworld Hong Kong.
Also, one reader has e-mailed to point out that Creative Commons "actually wanted to have CC-HK, but they couldn't locate a HK lawyer to translate the license to make sure it's workable under HK laws." Anybody out there?
Another reader writes: "I don't think the legal aspect is the only reason why Hong Kong is not Web 2.0, the whole culture of sharing, or "web culture". Perhaps you can draw parallels to the lack of culture, after all China and Taiwan are far richer culturally than Hong Kong, people enjoy their time in different ways compared to Hong Kong which is too pragmatic and money oriented." Good point.