The Copyright (Amendment) Bill has been debated in the Bills Committee for almost a year now. Officials from Intellectual Property Department, the Commerce & Economic Development Bureau, and other departments have been desperately trying to convince the public that the current version of the bill will not restrict freedom of expression online.
However, there is reason to be worried. The Bill lacks an effective exemption which is wide enough to balance the interests of users of copyright materials and those of the owners. Under the Bill, the copyright owner is granted a newly introduced “communication right”, which will impose civil and/or criminal liabilities on the use of a copyrighted work that is communicated by any form of electronic means, regardless of whether a copy is made or not.
The government claims that they have given netizens various kinds of exemptions that will allow them to continue their creation of derivative works. However, when I examined the Bill, I found the proposed exemptions insufficient to cover some of the most popular forms of derivative works we find online nowadays. The government only exempts works that fall into certain categories, such as “commenting on current affairs”, “quotation” (section 39) and “parody, satire, caricature and pastiche” (section 39A in the Bill).
What isn’t covered? Many types of derivative works are still unprotected. Some common types of re-creations are: live-streaming of video game play, fitting new lyrics to an old song to commemorate an event or a person, covering a song, music mash-ups, and fan comics. If these forms of derivative works are made for a non-profit-making purpose and do not affect the original market of the copyrighted work, why shouldn’t they be given an exemption?
It is unrealistic to only exempt parody, satire, caricature and pastiche works, as these are only four categories out of many other ways to re-create works. To put it simply, netizens are now required to spawn their creations within a cage. Undoubtedly this Bill will hinder creativity within our society because it limits people to producing derivative works within the four specified categories.
Furthermore, it is very difficult for netizens to take advantage of the proposed exemptions. First, one must be sure that a work falls within a specific type of exemption. If the work is a parody, they will need to ask if it really is a parody. What is the legal definition of parody? Unfortunately, there is no legal definition. Is your work funny enough to qualify as a parody? You will also need to examine your work within the four factors of the Fair Dealing principles, which take into account the nature of your work, the effects of your work on the potential market of the original work, to name a few. I think this has already given you a headache, right?
Who would want to re-create if they have to keep all these terms and conditions in mind and, at the same time, bear the criminal or civil liabilities that they may incur if their work fails to qualify for an exemption? The potential legal consequences of using such a restrictive and complicated form of legal exemption will have a chilling effect on those who want to create derivative works.
I therefore appeal to the government to look into other forms of copyright exemption adopted in other jurisdictions, such as Canada’s copyright exception for non-commercial user-generated content, and Fair Use in the United States, the Philippines, South Korea, Israel and Singapore, so that the creativity of our society can flourish and benefit our economy.
Keyboard Frontline was founded in 2011 with the mission of defending the rights of internet users under the 2012 Copyright (Amendment) Bill. It strives to raise public awareness on the importance of internet freedom, and ultimately create a free and open internet environment in Hong Kong.
