Copyright Protection in Digital Environment Strengthened
On November 17, the Hong Kong government released a package of refined proposals for more effective copyright protection in the digital environment.
Briefing the Legislative Council Panel on Commerce and Industry on the proposals, Hong Kong Permanent Secretary for Commerce and Economic Development (Commerce, Industry and Tourism) Yvonne Choi said the government was mindful of the challenges brought by advances in technology, and was committed to maintaining the efficacy of copyright protection laws in the digital era.
She also stated that robust copyright protection is a cornerstone for sustaining the further healthy development of creative industries in Hong Kong. “In formulating the proposals to better protect copyright works disseminated online, the government has strived to balance competing interests, including the need to provide an environment conducive to Hong Kong's development as an Internet service hub, as well as the protection of personal data privacy and free flow of information,” she said.
“We believe that the refined proposals have struck a reasonable balance among the interests of copyright owners, users and online service providers (OSPs).”
The government issued a consultation document in 2006 to seek public views on how best to strengthen copyright protection in the digital environment and released a package of preliminary proposals in 2008 for further public engagement.
Taking into account the views expressed by stakeholders during the consultation exercise and the latest developments in overseas jurisdictions, the government refined some of the preliminary proposals. The refined proposals include:
* Recognizing copyright owners’ right to communicate their works through any mode of electronic transmission, with related criminal sanctions against those who initiate unauthorized communication of copyright works to the public in the course of business conducted for profit or where it is made to such an extent as to affect prejudicially the copyright owners. This proposal will provide timely and adequate protection to copyright works being communicated on digital platforms via any mode of transmission, thus facilitating copyright owners to exploit their works in the digital environment and promoting the development of digital content.
* Introducing a statutory structure to prescribe the circumstances under which OSPs’ liability for copyright infringement would be limited. This structure will provide a level playing field for OSPs and help encourage them to cooperate in the fight against online piracy. To further this goal, the government will, in collaboration with the Tripartite Forum, draw up a Code of Practice that sets out the conduct expected of OSPs when notified of piracy occurring on their service platforms.
* Introducing an exception for temporary reproduction of copyrighted works by OSPs, which is technically required for (or enables) the transmission process to function efficiently. This exception will cover OSPs’ "caching" activities, which help save bandwidth and are indispensable for efficient transmission of information on the Internet.
* Prescribing in law additional factors to assist the court in considering the award of additional damages, in recognition of the difficulties encountered by copyright owners in proving the extent of actual loss, particularly in the digital environment.
* Introducing a media-shifting exception so that the owner of a non-infringing copy of a sound recording may make one copy of that recording in each device he lawfully owns for his personal and domestic use (e.g., converting a genuine CD music recording to MP3 format for listening on an iPod). This exception will give greater flexibility and certainty to users and facilitate reasonable use of copyright works.
Apart from the above proposals, the government also proposed to maintain its position on three other issues discussed in the public consultation: the government does not support:
a) introducing an alternative infringer identity-disclosure mechanism that is not subject to scrutiny by the court;
b) introducing statutory damages for copyright infringement actions involving the Internet; and
c) introducing new criminal liability pertaining to unauthorized downloading and peer-to-peer file-sharing activities.
“We will start preparing the necessary legislative amendments and will continue to engage the stakeholders in the process, with a view to introducing the amendment bill into the Legislative Council in the second half of 2010,” Miss Choi said.
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