Public Consultation on HK’s Copyright Regime

Public Consultation on HK’s Copyright Regime

Public Consultation on HK’s Copyright Regime 1400 788 Kelly

On 24 November 2021, the Hong Kong government launched a three-month public consultation on Hong Kong’s copyright regime on 24 November 2021. The consultation will last up until 23 February 2022.

Since 2006, the Hong Kong government has conducted three rounds of major consultations on strengthening the Copyright Ordinance (Cap. 528) (“CO”) in the digital environment. It has also introduced two amendment bills in 2011 and 2014 (the “2014 Bill”) respectively, though they were not passed as laws as the legislative processes could not be completed before the expiry of the respective Legislative Council terms.

The current consultation is based off the key legislative proposals contained in the 2014 Bill and will also address four much-contested issues from stakeholders during the deliberation of the 2014 Bill. Against this background, the government invites views on the following issues:-

  1. Hong Kong, similar to most jurisdictions worldwide, should continue to maintain the current exhaustive approach by setting out all copyright exceptions based on specific purposes or circumstances in the CO.

The consultation paper provides the following arguments in favour and in opposition of the abovementioned issue:

Should maintain the exhaustive approach Should NOT maintain the exhaustive approach

a.       Provides legal certainty as all exceptions are prescribed in the law.

b.       Consistency with international practices – as most jurisdictions worldwide adopt an exhaustive approach.

c.       A non-exhaustive approach is too wide, possibly enabling exploitation at the expense of copyright owners

d.       This approach is compatible with international agreements, such as the Berne Convention.

e.       Current legislations is sufficient in maintaining the balance of rights between owners and users

a.       A non-exhaustive approach allows more flexibility in accommodating new circumstances of uses and distribution in this digital age.

b.       Better alignment with expectations and behaviours of users – trivial activities that cause little or no economic harm to owners should not be regarded as copyright infringements.

c.       An open and flexible regime may offer better protection for freedom of speech and expression.

  1. Hong Kong should not introduce provisions to the CO to restrict the use of contracts to exclude or limit the application of statutory copyright exception(s).

The consultation paper provides the following arguments in favour and in opposition of the abovementioned issue:

Contracts should be allowed to exclude/limit the application of statutory copyright exceptions Contracts should NOT be allowed to exclude/limit the application of statutory copyright exceptions

a.       Freedom of contract should not be interfered with.

b.       Privity of contract – contract terms only bind users who are parties to the contracts.

c.       Lack of empirical evidence showing that users are prevented from relying on the existing exceptions in the CO.

d.       Users’ interests can be adequately protected under the existing legal framework, e.g., through the Unconscionable Contract Ordinance.

e.       No internationally consistent and unified approach as to such restrictions.

a.       Maintain the balance of rights and interests between owners and users – introducing statutory restrictions can help ensure that the benefits of the exceptions will not be undermined by private arrangements.

b.       This allows users to benefit from the copyright exceptions especially where there is disparity in bargaining power.

c.       Statutory restrictions will provide legal certainty and clarity for users.

  1. Hong Kong should not introduce specific provisions to the CO to govern devices used for accessing unauthorised contents on the Internet, including set-top boxes and Apps.

The consultation paper provides the following arguments in favour and in opposition of the abovementioned issue:

Should introduce specific provisions Should NOT introduce specific provisions

a.       Specific provisions can provide legal certainty to users.

b.       Facilitates enforcement efforts in reducing infringements.

a.       No genuine need, as the existing legal regime is sufficient in dealing with illicit streaming devices.

b.       As set-top boxes and Apps may take many forms nowadays, there is a risk of banning the legitimate use of neutral devices.

c.       There is no internationally consistent approach regarding this issue.

  1. Hong Kong should not introduce a copyright-specific judicial site blocking mechanism to the CO.

The consultation paper provides the following arguments in favour and in opposition of the abovementioned issue:

Should introduce a copyright-specific judicial site Should NOT introduce a copyright-specific judicial site

a.       Provides certainty and expediency to copyright owners seeking redress from infringing activities.

b.       Dedicated provisions can spell out the nature and extent of an online service provider’s responsibilities.

a.       Lack of evidence that the current injunctive relief mechanism is inadequate.

b.       Costs of compliance with judicial site blocking orders may be high.

c.       Concerns that the blocking mechanism would hinder freedom of access to information.

To find out more about the copyright regime of Hong Kong, please contact us today for a discussion.

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