Generation 40s – 四十世代

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Why Hong Kong’s copyright bill is no threat to free speech

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South China Morning Post
Comment›Insight & Opinion
2015-12-09

Stacy Baird

Stacy Baird says the proposed exceptions, taken together, unambiguously address all the concerns, and more. In fact, it is likely to be the broadest free speech exception in copyright law anywhere in the world

Some netizens are concerned that the government, politicians or wealthy Hong Kong copyright owners will use copyright law to suppress free speech.

To see why the concern is no longer realistic, it’s important to understand the law protecting freedom of speech in Hong Kong and the government’s proposed amendment.
If one is concerned that the government will use all means to suppress free speech, including flouting the rule of law, then it won’t matter what the copyright law says

Trumping all law, including copyright, are Hong Kong’s protections for free speech and free expression: Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights. The Hong Kong courts have been unyielding guardians of Hong Kong’s Bill of Rights, with rulings over the years emphasising the importance of these fundamental freedoms.

Correspondingly, section 192 of the copyright ordinance, something of a broad “public interest” exception, preserves the public interest over the copyright interest. Open public discourse on political issues and criticism of government facilitated by the right to free speech is the basis for – and most important aspect of – the right in how it serves the public interest.

Importantly, copyright only protects an expression, not an idea. Ideological, religious, political, social and economic views cannot be copyrighted. If a politician espouses ideas that one wants to challenge or use to illustrate a political concern, one may express the idea without using the exact expression of the politician.

As to what Hong Kong’s copyright law actually does: similar to other common law democracies, we have a fair dealing exception. For example, if sued for using a political speech or any copyrighted work such as a reworked movie poster or song with new political lyrics, one can offer the defence that the copyrighted work was used for the purpose of research, review, reporting current events or, most critically to the question of free speech, criticism.

Some raise the spectre of government influence on the courts as a potential problem, but it’s worth noting that if you get this far in the courts, you would be in a unique situation. In Hong Kong’s long history, no copyright lawsuit has been brought against an individual’s fair dealing.

And around the world, copyright law and the courts protect parody and free speech; so, were Hong Kong courts to look elsewhere for guidance, they would find a consistent body of jurisprudence protecting these rights.

For the most part, the copyright amendments under consideration have been pending for over eight years. In considering the 2011 amendments, some raised free speech concerns and thus sought an amendment to exempt parody. Recognising the concern went beyond simple parody and extended to a broader free speech issue, this year, the government has included a parody exception, but broader than in other jurisdictions, to include parody, satire, caricature and even pastiche, copying the style of a copyrighted work. The government also added a very broad exception for commenting on current events, and quotation.

But it seems to me that the proposed exceptions, taken together, the extraordinarily broad “parody”, current event commentary and quotation exceptions directly and unambiguously address all the free speech concerns, and more. It is likely to be the broadest free speech exception in copyright law anywhere in the world; and it makes it clear that it’s not the government’s intention to use or allow others to use copyright law to suppress free speech.

Yet critics are once again not satisfied and are delaying passage of the copyright amendment to seek an exemption for all “user generated content”.

Clearly going beyond free speech, they seek an exemption that I equate with providing all printers an exemption from copyright infringement – there’s no difference except that books and magazines are printed on paper and “content” is “generated” by “users” in digital form. Truly an exception designed to swallow the rule.

On the other hand, the clearly articulated purpose of the copyright amendment is to give copyright holders better tools to fight large-scale infringement and enable internet service providers to assist without risk of liability.

Here in Hong Kong, newspapers advertise set-top boxes to hack “free” access to copyrighted TV and movies, online sites enable downloading illegally “free” copies of music, movies, books and more. Hong Kong’s laws are not in line even with the most basic online copyright laws around the world. And now, with parody, current event and quotation exceptions, the law would break new ground, squarely addressing free speech.

I encourage the informed online community to embrace the amendments and the government to pass this long overdue legislation to enable legitimate online content to flourish.

Stacy Baird served as senior advisor and intellectual property & information technology counsel to key members of the US Senate and House of Representatives. He has held appointments as visiting fellow at the University of Hong Kong Faculty of Law and visiting scholar at the University of Southern California College of Letters, Arts and Sciences. Mr Baird has resided in Hong Kong for eight years

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