Digital Copyright: What is really in the Hong Kong people's interest?

The Hong Kong government's consultation period on proposed changes to Hong Kong's digital copyright law is winding down. The last day for submissions is on April 30th. InMedia Hong Kong is calling for more people to make their voices heard.

The South China Morning Post reported on Sunday that only 182 responses to the government consultation paper have been submitted. Five from organizations and 177 from individuals.

InMedia and OpenKnowledge are calling on the government to re-do the consultation. Why? Because not enough has been done to solicit public response.  Their position paper can be downloaded in Chinese as a PDF here. Among other things, they call for the government to include consideration of flexible copyright systems (like Creative Commons) and the concept of fair use in a revised consultation. They are also opposed to the criminalization of downloading by individuals, nonprofits, and educational institutions. 

Meanwhile, here in academia land we are preparing out own submission.  Intellectual property law professor Peter Yu and Charles Mok, head of the Hong Kong Internet Society, spoke at a seminar here at Hong Kong University last Thursday. They pointed to a lot of ways in which the proposed legal changes would be potentially harmful to freedom of expression in Hong Kong.

The Hong Kong government's consultation paper proposes "take-down" provisions and an approach to service provider liability for content similar to the U.S. Digital Millenium Copyright Act.  You may have heard about how Viacom has issued large numbers of DMCA take-down notices to YouTube alleging that tend of thousands of video clips have violated their copyright. The problem is, many people whose video has nothing to do with Viacom content have had their clips taken down erroneously. In other cases, people who have a strong case that the content they posted falls within "fair use" guidelines for critical and educational purposes have still had their material taken down.  Unless they happen to be a law professor, most people just give up at that stage. The San Francisco based Electronic Fronteer Foundation has been fighting hard for reform of the DMCA since it was enacted in 1998.  (Photos courtesy of Sky Canaves.)

In his talk last week, Peter made a strong case that the people of Hong Kong should be concerned about over-enthusiastic emulation of the DMCA. In the U.S. the DMCA has been prone to intentional abuse by those who want to silence critics and whistle-blowers.  (For details read this PDF document.) Peter pointed to specific cases in which companies have abused the DMCA to get service providers to take down content that was simply critical of them or which advertised competitive pricing, wrongfully claiming copyright violation in order to get the content removed. How do we guard against companies here in Hong Kong doing the same thing to use copyright as an excuse to silence critical consumer groups? What's more, copying the DMCA too closely here in Hong Kong could result not only in companies, but also other powerful "copyright holding entities" (which is pretty much anybody) using exaggerated allegations of copyright violation to silence speech they don't like.  How will the Hong Kong government prevent such abuses? The consultation document does not say.   

Another issue has to do with the consultation document's approach to criminal liability. He believes that the punishment needs to be more "proportional" to the actual harm committed. Which means that people who are file sharing and downloading for non-commercial reasons should not be treated in the same way as people who are doing so for direct financial benefit. Otherwise, you are turning most of Hong Kong's population technically into criminals, and certainly most of its young people. What are the consequences of this?

Peter didn't say this outright, but a couple of questions arise in my mind, also unanswered by the consultation document: Might the existence of illegally obtained movies on the hard drive of a government critic be used as an excuse to put him in jail???  What about a journalist who does a hard-hitting, muckraking report? Might she get a call from somebody the night before it is published saying "Greetings. We have learned from your ISP that somebody using  your home computer downloaded 100 songs illegally in the last month. (meaningful silence)...."

In Peter's view, copyright reform is not the only way to address the issues Hong Kong's entertainment industry faces. What's more, the digital environment should not just be defined as a commercial environment: it also includes digital lifestyle, access to knowledge, political discourse, and many other things. The government has an opportunity to take advantage of the Internet's promise - and the opportunities for innovation it affords. Not just approach it as a threat to some of Hong Kong's most vocal industries. Any new laws that do get passed need to be based "on empirical research rather than a leap of faith." More alternatives need to be explored. There is no upside to acting too hastily if you are taking the interests of all Hong Kong people to heart.

Charles Mok also emphasized that the consultation document does not adequately deal with protection of the rights of Internet users. Assuming the government here believes they should have some. People in Hong Kong should be entitled to fair use of material for educational purposes and also in the context of political and social criticism. He cites the UK's independent review of intellectual property, called the Gowers Review of Intellectual Property, which was much more comprehensive in the way that it addressed users' rights and the question of fair use.

Mok points out that the entertainment industry in Hong Kong is one big cartel. Is it the Hong Kong government's job to protect its cartels? Or shouldn't its responsibility be more broadly towards the rights and long-term interests of the Hong Kong people?

He also points out that if ISP's are required to retain more user data in order to help catch copyright violators, the possibility for abuse of that information also increases. "The more data you keep, the more likelihood of a screwup," he said. Indeed.

InMedia and OpenKnowledge, plus some other groups, say they are planning to organize a collective submission action to the Commerce and Trade Bureau this Friday. If you are writing a submission yourself, they ask that you "cc:" it to openknowledghk AT gmail DOT com so that they can include it in the submission tally of critical responses.

It would be great if somebody has the time to translate their full position paper in accurate detail. (Also, the video of InMedia's April 1st "Copyright=Creativity?" event, conducted in Mandarin and Cantonese, has been uploaded to DotSUB, and is now awaiting one or two volunteers to help with the translation and subtitling.)

As Sunday's SCMP article pointed out, a lot of Hong Kong internet users are concerned, but so far they have been voicing their concerns in more informal ways, such as this protest video posted on YouTube:

UPDATE (April 25): I don't know how I missed this but Oiwan Lam reports over at Global Voices that a group of Hong Kong netizens have organized a new Chinese-language BBS forum about this issue, article23.net. She writes:

The organizers compared the proposal in the government digital copyright consultation as the notorious article 23 in Basic Law which led to half a milion people demonstration in 2003. The BBS forum is to share information concerning digital copyright issue and possible mobilization against the copyright legislation.

Comments

[Alvin Cheung]

I'd be happy to try and translate the full position paper, if anyone else hasn't already done so.

[Pindar Wong]

FWIW, here's part of my submission which I just sent. [Apologies in advance for the formatting]

'Whether these activities involve uploading, downloading, innovative
technologies (P2P) etc. are a distant secondary concern as I believe
that ‘the principle’ is more important than ‘the pipe’. Specifically, I
believe that the scope of criminal liability should be narrow and apply
only to those copyright infringement activities of ‘an organised,
commercial or significant scale'. Such economic crimes should also, in
my view, be punishable by statutory damages (see i below) and the
rights holder should able to enjoy such quantifiable remedy if, and
only if, they have discharged their related responsibility to provide
timely mechanisms that enable the wider public to secure meaningful
licenses.

Rather than promote a single business model that relies on a
‘monopoly rents’, a litmus test of any resulting compliance and
enforcement policy, should be its ability to equally support the
‘interests’ of a variety of models, from those which are highly
restrictive (e.g. all rights reserved) to those which are more liberal (e.g. some rights reserved).

Protecting intellectual property is not an end in itself, and by
focusing and facilitating the wider societal interest to encourage
creativity, while providing clear quantifiable redress to rights holders, the Government may help the debate evolve towards establishing a creative ecosystem; rather than perpetuate and extend special-interest provisions.

Specifically, I believe there is an opportunity for the Government to
help establish HK as a world-leader in copyright compliance by requiring, and facilitating, the provision of enhanced licensing
schemes and innovative licensing structures. Exploring these licensing scheme, current methods of group protection, collecting
societies and innovation in this area is something your paper is
unfortunately silent on. Thus, from the perspective of avoiding
infringement in the first place, it is unexpectedly incomplete and some
might argue ... fatally flawed.