Proposals for Strengthening Copyright Protection in the Digital Environment
Following the public consultation on the proposed amendment of the Hong Kong copyright law and taking reference from the latest developments in some overseas jurisdictions, the Government recently published its refined proposals on strengthening copyright protection in the digital environment. The Government intends to introduce legislative amendments to the Copyright Ordinance in the second half of 2010 based on further discussions and consensus between the major stakeholders of copyright owners, users and online service providers in this area.
The Refined Proposals
The Government first sought public consultation in December 2006 on the proposals to strengthen copyright protection in the digital environment and released its preliminary proposals in April 2008. After considering public views on the preliminary proposals and the latest developments in some overseas jurisdictions, the Government published its refined proposals in November 2009 as a briefing to members of the Legislative Council, as follows:
- Recognising copyright owners' right to communicate their works through any mode of electronic transmission, with criminal sanctions against infringement
The Government proposes to amend our copyright law to broaden the protection of copyright works communicated to the public via any mode of electronic transmission, rather than through certain specific modes of transmission, for example to "broadcast" a copyright work; to include it in a "cable programme service"; or to "make it available" to the public by wire or wireless means, under the current law. Further, the Government proposes to impose criminal sanctions against those who initiate unauthorised communication of copyright works to the public not just in the course of business conducted for profit, but also where it is made to such an extent as to affect prejudicially the copyright owner.
- Introducing a statutory limitation of liability regime for online service providers in dealing with online piracy
The Government realises the importance of online service providers' role in combating online piracy and hence proposes some incentives for them to cooperate, including the proposal to introduce a statutory regime which would limit the liability of online service providers for copyright infringement. This regime will be supported by a Code of Practice which provides guidelines to online service providers when they are notified of the infringing activities. Measures such as "Notice and Notice" (sending notice to the claimed infringer upon receipt of a notice from the copyright owner concerned) and "Notice and Takedown" (taking down or disabling access to the claimed infringing materials upon receipt of a notice from the copyright owner concerned) are being investigated and considered.
- Introducing a copyright exception for temporary reproduction of copyright works by OSPs
The Government is of the view that an exception for temporary reproduction of copyright works, mainly in a technical sense for example caching activities in save bandwidth, is important for efficient transmission on the Internet. Not surprisingly, this proposal is supported by most online service providers and users but some copyright owners are concerned about possible abuse of this exception. The Government will continue to work on the specific scope and conditions attached to the exception.
- Prescribing additional factors for considering the award of additional damages
The Government does not support the introduction of statutory damages proposed by some copyright owners as the Government is of the view that it will be difficult to specify a set range of statutory damages to cover all possible infringing activities. The Government however recommends additional factors be included in the Copyright Ordinance to assist the Court in awarding additional damages. The Government will continue to consider the specific additional factors to be included.
- Introducing a media shifting exception for sound recordings
"Media shifting" means the copying of an authorised copyright work from one medium to another which may involve changing the format of the work, for example by converting songs in a CD to MP3 format for listening on a personal computer. "Media shifting" constitutes civil infringement under the current copyright law. Not surprisingly, users support the proposed exception as this will enable them to convert copyright materials legally to other formats for their own convenient use or enjoyment but most copyright owners probably do not support this exception. To balance their interests, the Government proposes to introduce a media shifting exception limited to sound recordings only.
Proposals not supported
Some notable examples of measures proposed by copyright owners which were not supported:
- A non-judicial alternative to the "Norwich Pharmacal" principles
- Introducing statutory damages for online copyright infringement actions
- Introducing new criminal liability pertaining to unauthorised downloading and peer-to-peer file-sharing activities
JSM has acted for major local and overseas copyright owners from a wide range of industries in cases involving copyright infringement in Hong Kong and the PRC. We are fully equipped to provide our clients with tailored action plans to enforce their rights in light of the potential legislative changes in this area. We have represented industry groups in making submissions to the Government in response to its consultation papers and successfully obtained rental rights for the film, comics and animation industries.
On the other hand, JSM has also advised users such as schools and universities on their intellectual property policies and strategies and advises the universities' committees on their reprographic licences.
For inquiries related to this Client Alert, please contact:
Kenny Wong (firstname.lastname@example.org)