Hong Kong Copyright (Amendment) Bill 2011 Criminalises Parody and Uploading/Posting of Unauthorised Coyrighted Materials including News Articles/AFP’s Misleading Report on Hong Kong Copyright Amendment

Rewriting lyrics of Cantopop and photoshopping pictures have became the two most important tools for Hong Kong netizens to voice their opinions.

Cyberspace, the only place where the poor can talk.

The above screen capture is from 2010.10.1 episode of RTHK’s “Headliner”.

Ever since Copyright (Amendment) Bill 2011 was introduced in the end of 2009, it has provoked opposition from netizens. However, the bill is still going to be passed on May 2012. The following video is from 2012.3.29 TVB’s 新聞透視 “News Magazine”. In this episode, it discusses the impact of the bill, which is referred as “Internet Article 23” by netizens.

(*TVB sided with netizens for once)

Part 1

Part 2

Netizens’ Comments

This is the Copyright (Amendment) Bill 2011 (not 2010) that was gazetted on 3 June 2011 and being pushed by the Commerce and Economic Development Bureau for enactment. The biggest problem is that this is a technology-neutral restricted act under the terms of its Section 28A – basically, copyright infringement can mean whatever the authorities want it to mean. The second biggest problem is that the proposed Section 118(8B) creates a new criminal offence in unauthorised communications of works to the public. The big problem is with s.118(8B)(b), whereby a person commits an offence if he communicates the work to the public in circumstances not falling within s. 118(8B)(a) “to such an extent as to affect prejudicially the copyright owner” without the licence (i.e. permission) of the copyright owner. Again, the authorities could make the “circumstances” and “prejudicially” to mean whatever they want them to mean by reference to another section (s. 118(8C)), which is a non-exclusive list of statutory criteria – not the usual kind of statute-making in a common law jurisdiction (ever!). The ambit of the Copyright (Amendment) Bill 2011 basically relates to the phonographic industry (read: music industry) but the terms of virtually all the sections up for amending the Copyright Ordinance makes this piece of legislation a virtual catch-all. Time to write to your local politicians and get your money’s worth out of them now…

Section 28A

28A. Infringement by communicating to the public
(1) The communication of a work of any description to the public is an act restricted by the copyright in the work.

(2) References in this Part to the communication of a work to the public are to the electronic communication of the work to the public, including—
(a) the broadcasting of the work;
(b) the inclusion of the work in a cable programme service; and
(c) the making available of the work to the public.

(3) References in this Part to making a work available to the public are to making the work available, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the work from a place and at a time individually chosen by them (such as by making works available through the Internet).

(4) The mere provision of facilities by any person for enabling or facilitating the communication of a work to the public does not of itself constitute an act of communicating the work to the public.

(5) A person does not communicate a work to the public if the person does not determine the content of the communication.

(6) For the purposes of subsection (5), a person does not determine the content of a communication only because the person takes one or more steps for the purpose of—
(a) gaining access to what is made available by someone else in the communication; or
(b) receiving the electronic transmission of which the communication consists.

Section 118(8B)

(8B) A person commits an offence if the person—

(a) without the licence of the copyright owner of a copyright work, communicates the work to the public for the purpose of or in the course of any trade or business that consists of communicating
works to the public for profit or reward; or

(b) without the licence of the copyright owner of a copyright work, communicates the work to the
public (otherwise than for the purpose of or in the course of any trade or business that consists of communicating works to the public for profit or reward) to such an extent as to affect prejudicially the copyright owner.

jayjayhohoho: Surfing online is going to be a crime.

LOliboyd: If Hong Kong legislates the law, she will have no differences from Mainland China.

ivorychau: What kind of people are afraid of parody? Bastards who do bad things in the dark. Their existence is to do bad things, like the greedy Chief Executive and local communist wolf who wanted to have bloodshed in Central. Of course they don’t want you to slam them. However, if you were not bad, who would slam you? Stupid prick!

HumaDiscover: The last part: we can run over you with tanks first and then ask whether you are comfortable.

XFREUD123: Even freedom on the Internet disappears! Next is burning book! And then making people disappear! SCARED!

neozchiang: How can I surf online when the amendment is like that. Whatever I do will be a criminal offence.

alaricpoon123: Sigh…The government only bully kind people and fear the evil ones. They avoid doing hard and good works, and they only do easy and harmful ones. Making Hong Kong bad is their specialty.

wongtszhin: Rubbish Government. They even dare to encourage people to use the Internet for lifelong learning. They ban people from posting pictures, (rewriting) lyrics etc, how can you get information from the Internet? They want us to go back to the era without the Internet? Going back to the library to search for information? Are they putting the cart before the horse now?

你只是飛鳥: The government legislate this law to suppress power of the Internet. Protecting intellectual property is just a beautified name. In fact, the law regulates online speech as public opinion online has became widespread and mature, and derivative work accelerates the spread of information. For instance, photoshopping pictures or parody videos make more people understand an issue. When public opinion becomes strong, the government has no choice but to set aside or delay a policy. The aim of this law is to make it as a political tool. Selective prosecution will weaken public opinion, especially on political issues. The government only seeks “stability maintaining” (*suppressive) measures instead of solving issues.

Hong Kong Economic Journal interviewed three barristers and a solicitor about chances of convictions for the three recent derivative works.

Protest against the amendment from last year July 1st demonstration,

Enthusiastically Congratulate that
the Communist Party Successfully Strive for
the Partitioned Article 23 to be on the Market

On March 28th 2012, Apple Daily reported that “Keyboard Frontline” 鍵盤戰線, a major group that is against the Copyright (Amendment) Bill 2011, received two telephone treats.

Activist group “Keyboard Frontline” always post picture parody to criticise ills of the day. Member Summer said that a member received two telephone threats a week ago, one caller spoke in Mandarin and another one spoke in accented Cantonese, “warning us not to create chaos.”

From the Online Petition “Withdraw Copyright (Amendment) Bill 2011”

The HKSAR government proposes to amend the existing copyright ordinance (Cap 528) by introducing the Copyright (Amendment) Bill 2011 (the “Bill”). Should the Bill be passed, it shall have an immense impact on the freedom of publication and speech, suppressing the voice of the public. The Bill causes suspicion of carving out the Article 23 to be legislated. We must stand up and say no to this vicious law. The followings are the impacts of the Bill:

A. Refusal of including the derivative work in the ambit of fair dealings

The HKSAR government refused to include derivative works in the ambit of the fair dealings and claimed that the consultation in this regard with the public shall be conducted after passing the bill. However, once this vicious bill is passed, derivative works shall be forbidden. Even if derivative works were to be immune in future, the prevalence and popularity of recreating works of others now would not be able to turn the clock back to its prime time.

B. Passing the Bill is equal to forbidding all the activities in the cyber world

The scope of the criminal liability of the Bill is extended to “all forms of electronic transmission” and “distributing” is amended to “communicating to the public”. It means that “uploading to the Internet” or “transmitting via the mobile” shall attract criminal prosecution. This is no difference from forbidding all sharing activities on the Internet.

C. HKSAR government may by-pass the owner of the copyright to prosecute the person who distributes his derivative work or share the work of others on the internet

Though HKSAR government said they would not take the initiative to prosecute, the enforcing authority may still circumvent the owner and initiate prosecution on behalf of the owner against the re-creator of the derivative work and people who share work of others on the grounds of infringing the rights of the original owner. It shall be the start of the trend of literary persecution.

D. Netizens may face the difficulty of exposing the identity and privacy of others or be punished as a criminal associates

If a netizen is using the Internet social platforms with message-posting function, for example Facebook, Plurk, Twitter, Weibo, blogs or forums without leaving his own name and contacts (including telephone, address or email), he might bear the same criminal culpability as the person who makes the infringing copyrighted work available to the public on his Internet social platforms. This vicious law forces all netizens to expose their own identities or to face the same criminal liability of the distributor.

E. Refusal to supervise the copyrights licensing bodies makes derivative works become subject to the game of “Monopoly”

The Government has never done anything to supervise or regulate the behaviour of the copyrights licensing bodies. Users and owners of the copyrights are facing the same unfair and unreasonable treatment as to the fees to be paid to the licensing bodies, even the owners themselves are under restrictions of using their own works. However, this situation has not been dealt with in the Bill. Derivatives works, therefore, become the subject of the monopoly game of the licensing bodies.

F. Lack of protection to the open typed copyrighted work

The HKSAR government and the Bill provide no protection to the open typed copyright work, such as the Creative Commons and General Public Licence etc. If the copyright licensing bodies initiate prosecution against others for illegal distribution and do not accept the value of the creative commons, the rights of the copyright owners would not be fully protected. However, nothing is mentioned in the Bill in this regard.

G. Continually regulating objects to derogatory treatment of work kills the creativity and freedom of speech

Under the current copyright laws, the objects to derogatory treatment of work are regulated. It is an offence if there is any addition to, deletion from or alteration to or adaptation of the work and the treatment of the work is derogatory and amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director. The essence of the derivative work is to alter the original work to become a new creation of work. In such case, all the derivative work would be regarded as work infringing the copyright of the original author. This cannot be the intention of the Bill to kill the creativity and freedom of speech.

Therefore, we demand:

● Exempt all derivative works and enlist them as “Fair Dealings”;
● Limit the criminal prosecution to cases with serious economic loss and define clearly what is “incalculable potential business value” to avoid abuse of power by the enforcing authority.
● Delete all entitlement to non-physical loss, especially losses to derogatory treatment of work to prevent the laws to be exploited as a tool of suppression of ideas;
● Delete requirements of the service providers to disclose personal private data of users and the criminal liability of failing to do so under the Bill;
● Mend the existing loopholes by regulating and supervising the copyrights licensing bodies with clearer and stricter laws; and
● Correct the imbalance of the protection to various copyrights under the current laws and provide protection not only to closed typed authorisation and commercial licence but also to the open typed authorisation.

Part of the Statement from Hong Kong Art and Cultural Communities

According to the draft, criminal sanctions will be introduced against so-called “unauthorised communication of copyright works”. In other words, any form of creation (namely literature. drama, music, architecture, sculpture, photography, film, broadcasting, graphic design, computer programming, sound recording and artwork creation) regarded as affecting “prejudicially the copyright owners” could be illegal and charged straight by the government.

“Oppose Internet Article 23” by Neo Democrats (*to which Gary Fan belongs.)

Politician Gary Fan calls for netizen to protest against the amendment on April 29th 2012.

In fact, this amendment changing civil case into criminal charge is not for the protection of creators and copyright holders. Instead, it provides one more way for “the ill-intentioned” to “strip away freedom”, enforcing the control of Hongkongers’ minds.

“Copyright (Amendment) Bill”

Info from a Macau netizen: “Internet Article 23” is going to be implemented on June 1st

成人貼圖區: While Hong Kong is still confronting with “Internet Article 23”, Macau “Internet Article 23” has already been promulgated and will be implemented on June 1st. Had I not listened to the radio daily, I would know nothing about it if I were arrested. The authority even said next year it would follow Taiwan to exchange communications through government platform, that means all messages will be censored. Will netizens be able to speak the truth? Will the truth be exposed?
Basically, it makes suppression of dissident and blockade of information more convenient. The promulgation of the amendment is extra low-key and there is no promotion at all. Why does the authority have to implement it before June 1st? Certainly because of May 35th. (*euphemism for June 4th 1989)
Macau is getting scarier and scarier.

AFP’s Misleading Report on Hong Kong Copyright Amendment (5.20.2012)

AFP published a report on  Hong Kong copyright amendment just 2 hours ago. However, it concludes with the comment from Hong Kong Commerce and Economic Development Secretary Gregory So,

“This Bill is very important to Hong Kong. It updates our copyright law and it is not intended to deal specifically with parody,” Commerce and Economic Development Secretary Gregory So said.

“In fact, if you review the amendment that we are proposing, there is not even one single provision dealing with parody. It is not meant to restrict freedom of expression or speech.”

No form of artistic endeavour that does not currently incur criminal liability will be criminalised if lawmakers pass the amendments as they stand, he added.

However, according to Kevin Pun, the associate professor of Hong Kong University Department of Computer Science (full report),

Hong Kong ‘s fair dealing belongs to close ended (specific purpose-driven fair dealing exception)…”Even obvious parody could get you in trouble. The space for creativity will be shrank.”

*Parody is not exempted in the amendment.

This amendment is on the human rights report from the US government.

Internet Freedom

Activists complained that the government’s Copyright Amendments Bill prohibiting unauthorized use of copyright material in any medium without permission would threaten freedom of speech. They claimed the changes would negatively affect works of satire or parody on the Internet because there would be no “fair-use exception.” Some pan-democratic activists and supporters termed the bill a “cyberspace Article 23” (a reference to controversial anti-subversion measures the government proposed in 2002 that led to Hong Kong’s largest-ever street demonstrations). The government’s position was that the amendments would strengthen intellectual property rights.

UPDATE on 2012.7
This bill has been called off.