Hong Kong - Public Consultation on Updating Copyright Regime

The Government of Hong Kong has released a public consultation paper on updating Hong Kong’s copyright regime on 24 November 2021.  Members of the public are invited to provide their views by 23 February 2022. 

Basic Background to the Existing Copyright Regime

To those who are not familiar with the laws of Hong Kong, copyright is governed by the Copyright Ordinance (Cap. 528) (“the Ordinance”).  The Ordinance came into effect back in 1997 and incorporates a substantial part of the Copyright, Designs and Patents Act 1988 of the UK.  

As with many other jurisdictions in the world, the existing copyright regime might not be well-placed to meet the rapid development in technology and the creative economy.  To this end, since 2006, the Government has conducted rounds of major consultations and introduced two amendment bills in 2011 and 2014 into the Legislative Council.  Back to the time when this Kat was still a student and had not even considered IP to be a career option, there were serious concerns regarding the amendments and in particular concerns that freedom of expression could possibly be compromised.  This resulted in extensive scrutiny within the Legislative Council.  Consequently, both amendment bills were unable to proceed and lapsed upon expiry of the respective terms of the Legislative Council. 

This Kat enjoys a good story-telling time.

This Kat enjoys a good story-telling time.

The Public Consultation

A. Key Legislative Proposal of the 2014 Bill

It is stated in the consultation paper that the key legislative proposals as set out in the amendment bill in 2014 (“the 2014 Bill”) represent a consensus that has struck a proper balance between the interests of different parties and will form the basis of the new amendment bill.   

The consultation paper summarises the five key areas covered in the 2014 Bill:- 

1. Introduction of a technology-neutral communication right for copyright owners to communicate their works to the public through any mode of electronic transmission to ensure that the protection afforded to copyright owners would cover any mode of electronic transmission. 
2. Criminal sanctions against those who make unauthorised communications of copyright works to the public for profit or reward or to an extent which will cause prejudice to the copyright owners.  
3. Revised and New Copyright Exceptions for the education sector, libraries, museums, archives, temporary reproduction of copyright works by online service providers, and media shifting, as well as new fair dealing exceptions to cover (i) use for the purposes of parody, satire, caricature and pastiche; (ii) use for the purpose of commenting on current events; and (iii) use of a quotation. 
4. Introduction of a set of “safe harbour” provisions to limit the liabilities of online service providers for copyright infringement.  This is an actively developing aspect of the law in other jurisdictions e.g. the UK and the EU. 
5. Additional Damages in Civil Cases

B. Four New Issues

The current public consultation also seeks to address the following four new issues which generated much interests since the deliberation of the 2014 bill:- 

1. Whether the exhaustive approach to fair dealing should be maintained. 
2. Whether to impose restrictions to restrict the use of contract to override copyright exceptions. 
3. Whether specific provisions should be introduced to govern devices used for assessing unauthorised contents on the Internet, including set-top boxes and apps.
4. Whether a copyright-specific judicial site blocking mechanism should be introduced. 

It is noted that the Government’s preliminary view is not to introduce changes to the existing copyright regime on the above four issues. 

C. Three Potential New Issues for Further Studies

The consultation paper also addresses the following three potential areas for further studies:- 

1. Extension of the term of copyright protection. 
2. Introduction of specific copyright exceptions for text and data mining. 
3. AI and Copyright. 

A Long-awaited Update…. but is this enough?

Unless there are strong public views to introduce changes to the four new issues mentioned above, it would appear that the new amendment bill based on the current consultation would be more or less similar to the 2014 Bill.  The amendments relating to online service providers are particularly important.  

Having said that, are these amendments sufficient to keep Hong Kong up-to-date with the developments in other jurisdictions?  AI is currently the “hot topic” around the globe.  Readers may be aware that the UKIPO has recently called for reviews on AI and IP (as reported here) and the European Commission has also recently addressed AI-related challenges in a draft Artificial Intelligence Regulation (as reported here).  The fact that the consultation paper refers AI as a “possible” topic for further discussion shows that there will be an ongoing need to update Hong Kong’s copyright protection regime to keep up with modern developments.  In the meantime, as the saying goes, changes always come in baby steps. 

"I am learning to walk..."