copyright protection regime
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The Government has put forward a package of preliminary proposals to improve our copyright protection regime to help foster an environment conducive to the development of Hong Kong as a knowledge-based economy to the benefit of the community as a whole.
Speaking at the Hong Kong Intellectual Property Society luncheon, the Secretary for Commerce, Industry and Technology, Mr John Tsang, said today (June 17) that these proposals were formulated after careful consideration of the diverging views from the recent public consultation exercise and subsequent discussions with concerned stakeholder groups.
"We need to strike a delicate balance between the principles of further strengthening our copyright protection regime and the need for reasonable use of copyright works by the general public," he stressed.
Mr Tsang said that a reasonable balance had been struck and urged Legislative Council members and various stakeholder groups, in evaluating the merit of the proposals, to take a broader perspective taking the overall interest of the community into consideration.
The Government launched a public consultation exercise in December, 2004, to seek public views on a number of copyright-related issues which carry wide social implications. A total of 430 submissions have been received.
On specific proposals, Mr Tsang said that the scope of business end-user possession criminal liability was an issue with a long history of debate.
"Having carefully considered the opposing views of users of copyright works and copyright owners, we propose to maintain the existing scope of business end-user possession criminal liability to cover only four categories of copyright works: computer programs, movies, television dramas, and musical recordings.
"To address copyright owners' concerns about their printed works being copied easily and distributed widely, the Government proposes to introduce a new business end-user criminal offence. This will target at significant infringement activities involving the act of copying for distributing, or distributing infringing copies of copyright works published in four types of printed publications, namely, books, newspapers, magazines and periodicals," Mr Tsang said.
In view of the current education reform to promote liberal studies and school-based teaching, teachers may increasingly need to make and distribute copies of copyright works in the four types of printed works for teaching purposes.
"We therefore propose to exempt non-profit making educational establishments and educational establishments subvented by the Government from the proposed criminal offence," he said.
To promote better corporate governance and accountability to prevent copyright infringements in business, the Government proposes to introduce a new criminal offence against the director(s) or partner(s) if a body corporate or partnership has done an act attracting the business end-user criminal liability unless there is evidence that the director(s) or partner(s) have not authorized the concerned infringing act.
Regarding copyright exemption, Mr Tsang said the Government considered it important to give clear guidance to both copyright work users and owners regarding the particular purpose and circumstances under which an act might be done without infringing copyright.
"We propose not to go for a general non-exhaustive fair use regime along the US model and that all the existing permitted act provisions in the Copyright Ordinance will be retained and improved in some cases.
"Nonetheless, for the purposes of education and public administration which are already currently covered by exemption provisions in our Copyright Ordinance, we acknowledge that the existing list of permitted acts can no longer keep up with the constantly changing circumstances of use, and it would not be feasible for us to provide an exhaustive list of permitted acts in the law for such purposes.
"We, therefore, propose to adopt a non-exhaustive fair dealing approach for use of copyright works for two specific purposes, namely instruction and public administration," Mr Tsang explained.
On technological measures for copyright protection, Mr Tsang said the Government proposed to extend the entitlement of copyright owners to claim civil remedies against circumvention of technological measures to cover access control measures and the act of circumvention, but the technological measures must be used to protect copyright works from copyright infringement.
To address concerns about possible hindrance to scientific research, the Government proposes to introduce an exemption for research into cryptography for the civil liability associated with the act of circumvention provided that the concerned act of circumvention or the subsequent publication of the research information would not prejudicially affect copyright owners.
Apart from civil liability, the Government also proposes to introduce a new criminal offence against commercial dealing of devices, products or components and the provision of services on a commercial scale which circumvent technological measures applied to a copy of a copyright work.
"This new offence will help combat the prevalent sale of game consoles installed with modified chips, which contributes substantially to the existence of a thriving market for infringing copies of computer games.
"It will also deter the emergence of other commercial activities undertaken to circumvent the technological measures applied to a copy of a copyright work distributed in the digital environment, such as songs available for sale on the Internet," Mr Tsang said.
On parallel importation of copyright works, Mr Tsang said that on balance, the Government proposed to retain all existing restrictions on parallel imports of copyright works except for the existing criminal and civil liability for the importation and possession for use of parallel imports of copyright works by educational establishments and libraries for their education and library uses.
In light of the film and comic book industries' estimate of the impact of commercial rental activities on their potential markets, Mr Tsang said that the Government proposed to introduce rental rights for films and comic books and to provide civil remedies for violation of these rights.
Such provision, if introduced, should not commence operation until a reasonable amount of copyright items available in the existing rental market had been covered by rental licensing schemes, he said.
"We will consult the Commerce and Industry Panel of the Legislative Council on these proposals and continue discussion with all the concerned stakeholder groups.
"We will review, and refine as necessary, our proposals in the light of their comments, and take them into account when drafting the necessary amendment bill for submission to the Legislative Council for consideration and enactment before expiry at the end of July, 2006, of the suspension arrangement for business end-user possession criminal liability," he said.
On Internet piracy, Mr Tsang noted that the Government had already put in place a multi-pronged approach involving public education, law enforcement and industry cooperation.
"However, we acknowledge the need to review our Copyright Ordinance to consider whether and how legislative amendments might be justified for more effective protection of copyright works in the digital environment.
"In particular, we will need to study four related issues - whether a technologically neutral right of communication should be introduced for copyright owners, how to facilitate copyright owners to take civil action against infringing activities on the Internet, whether statutory damages for civil infringements should be introduced and the role of Internet Service Providers in the fight against Internet piracy.
"We have invited copyright owners to give us their views on these issues and we plan to conduct another public consultation towards the end of this year." Mr Tsang said.
Details of the Government's proposals on the various copyright related issues can be found on the website of the Commerce and Industry Branch (www.info.gov.hk/cib). The public is welcome to send their views to the Branch by email at: co_review@citb.gov.hk.
Ends/Friday, June 17, 2005
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