Thanks to the hard work of our friend and ally Prof. Peter Yu, on Monday my colleagues and I at the Journalism and Media Studies Ctr managed to hand in a lengthy response to the Hong Kong Government's Consultation Document on Copyright Protection in the Digital Age, authored by Peter.
The paper is titled Digital Copyright Reform in Hong Kong: Promoting Creativity Without Sacrificing Free Speech. It begins:
...this position paper addresses issues that lie at the intersection of copyright reform and the protection of free speech, free press, and privacy. In particular, the paper examines the benefits and shortcomings of criminal liability for unauthorized uploading and downloading of copyrighted works, a notice and takedown procedure for online service providers, a subpoena mechanism to facilitate copyright infringement actions, and statutory damages for copyright infringement. In addition to offering recommendations on whether and how copyright law should be revised, the paper also highlights the opportunities for Hong Kong created by the digital revolution. The paper contends that, if Hong Kong is to further develop its knowledge-based economy and to become a regional hub for digital technology, it needs to define copyright reform more broadly to include future authors, user communities, and not-for-profit organizations.
Lengthy sections are devoted to proposed reforms on criminal liability, notice and takedown procedure, subpoena mechanism and statutory damages. It considers other alternative options and makes some recommendations (I am summarizing the bullet points, read the document for full explanations):
* Introduce a broad fair use privilege.
* Introduce a format shifting exception that would allow copyright holders to reproduce legitimately purchased copyrighted works in different formats.
* Introduce a ‘safe harbour' for innovators to develop products that are capable of substantial non-infringing use.
* Introduce a special exception for the use of online materials by educational and research institutions.
* Broaden the privilege for unauthorized use of online materials for news reporting purposes.
* Explore the use of levies to facilitate private copying.
* Facilitate the use of orphan works on the Internet. (Orphan works are works for which their authors can no longer be found.)
* Explore government support of open access initiatives and new flexible copyright regimes. Examples of these initiatives include open format for government documents, open access journals, and Creative Commons.
* Facilitate interoperability of new communications software, platforms, and technologies.
* Limit the protection of government works in the digital environment. Government works should be freely available for reproduction and distribution on the Internet.
* Ensure proper labelling of goods that deploy digital rights management to restrict consumer rights.
The advent of the Internet and new communications technologies has posed serious challenges to copyright holders. However, it has also created many new opportunities. Indeed, through the use of these technologies, people can now converse with others via e-mail and online chats, look up information in virtual libraries, increase knowledge by taking distance-learning courses, publish social commentaries on their own websites, and develop social communities in the virtual world. If Hong Kong is to further develop its knowledge-based economy and to become a regional hub for digital technology (rather than a hub for only digital content), it needs to take advantage of the promise of the Internet and the opportunities innovation affords.
As in other parts of the world, there remains a very serious unauthorized copying problem on the Internet in Hong Kong. However, the solution to the problem may not necessarily be copyright law reform. As this position paper has shown, many of the reform proposals would incur significant socio-economic costs, which at times have outweighed their benefits. There are also many other effective alternative non-legislative proposals that are not mentioned in the consultation document. If policy makers are to undertake an complete and accurate assessment of the needs for copyright law reform, they cannot limit stakeholders to copyright holders and Internet services alone; instead, they need to include future authors, user communities, and not-for-profit organizations (such as schools and libraries). They also need to take advantage of the research and empirical data that have now become available abroad. The Internet today is very different from the Internet in the mid-1990s, when Internet-related legislation first emerged.
Copyright reform cannot be based on a leap of faith; it has to be based on a careful empirical assessment of the local needs, interests, and goals. A holistic copyright law reform that takes into account of the various stakeholders not only would be socially beneficial, but also would set an important example for other countries that are struggling with similar legal problems and policy challenges. Instead of staying behind or playing catch-up, a well-managed copyright law reform would move Hong Kong to the forefront of the Internet debate.
It will be interesting to see what the government actually ends up doing.