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Speech by SCIT at HK Intellectual Property Society luncheon (with photo)

    Following is a speech by the Secretary for Commerce, Industry and Technology, Mr Joseph WP Wong, at the luncheon hosted by the Hong Kong Intellectual Property Society today (December 14):

Selina, Ladies and Gentlemen,

     It gives me great pleasure to join you today at the Hong Kong Intellectual Property Society's luncheon.  

     Last week, Hong Kong successfully hosted the ITU TELECOM WORLD 2006, the world's largest and most prestigious exhibition and forum event for industry players to showcase the latest IT and communication technologies. The array of technological advances on display, apart from showing us the shape of the digital world in the future, open up new digital avenues for our creative industries to market and disseminate their creative works. They also present new challenges to copyright owners in safeguarding their interests.  

     The Government is committed to providing a favourable environment for our creative industries to sustain their development in this digital era. It is an opportune moment for me to share with you the Government's work and current thinking in maintaining a robust copyright protection regime in the digital environment.

Existing framework against Internet piracy

     The development of the broadband infrastructure and advances in transmission technologies enable users to acquire copyright works at any time and any place as long as they are connected to the Internet platform. These developments present enormous business opportunities for the creative industries to exploit their works across a digitised world virtually without borders. On the other hand, they also provide a convenient super highway for piracy activities. Large-scale infringements may occur within seconds by several mouse clicks.  

     The existing copyright protection regime in Hong Kong gives us a good foundation to face up to the challenges. Our Copyright Ordinance accords protection to copyright works stored in digital format, and made available or distributed on the Internet. Copyright owners may institute civil action against any person who infringes their rights in the digital environment. Indeed, our music and movie industries are taking stern civil action against online infringers. Besides, any person who uploads an infringing copy of a copyright work onto a website or initiates file sharing activity using the Bit-Torrent (BT) program and affects prejudicially the copyright owner commits a criminal offence.  

     With the full support of our copyright owners, the Customs and Excise Department is taking vigorous enforcement action against online piracy activities. It monitors the Internet round the clock and takes prompt action against suspected cases. We have a number of enforcement cases involving unauthorised uploading activities at websites. We also have the world's first ever enforcement operation leading to conviction and imprisonment of a person who distributes infringing copies of movies using the Bit-Torrent (BT) program.

     Apart from enforcement, we have been partnering with the copyright owners in our public education efforts to promote respect for intellectual property rights in the community.

     With support from the Government, various stakeholders of our creative industries together with the Hong Kong Cyberport Management Company Limited and the Internet Professional Association have recently formed a landmark alliance to promote authorised downloading of copyright content in the community. It also provides the first-ever platform on which IT solution providers and practitioners in our creative industries can discuss and develop new win-win technologies and business models that will benefit both sectors.  

The consultation

     I have just outlined the efforts that we have made to combat Internet piracy. Are these existing efforts adequate to address the problem? Should more be done to safeguard the rights of copyright owners in the digital environment? It is with this mind that we will shortly issue a consultation document to solicit public opinion on the subject.

     The issues to be covered in the consultation document carry wide social implications and require very careful deliberation. We will set out in the document how other jurisdictions handle similar issues. We will also put forward in the document possible options for addressing the issues and the relevant considerations surrounding these options. The purpose of the exercise is to stimulate informed discussions in the community so that all relevant arguments and suggestions could be fully articulated and debated. The Government has an open mind on how the issues covered in the consultation document should be addressed.  

     Let me now share with you some of the issues that we will examine in the consultation document.

Liability for unauthorised downloading and uploading activities

     A key issue that we will look at is whether we should widen the scope of online piracy activities that could be caught by the criminal net. Copyright owners have indicated that the emergence of new transmission technologies like peer-to-peer (P2P) file-sharing technology has caused a massive increase in unauthorised uploading and downloading of copyright works on the Internet. Some of them have therefore requested that criminal sanctions should be introduced against individual users who are downloading copyright works using P2P programs as they are also "uploading" copyright works to other users. Some copyright owners further demand that criminal sanctions should be introduced against traditional downloading activities from websites to increase the deterrence against Internet piracy activities.  

     Expanding the scope of criminal liability against Internet piracy activities would signify our strong commitment to uphold a robust copyright protection regime in Hong Kong. This would help facilitate the sustained development of our creative industries in this digital era. On the other hand, it is for consideration whether a person who obtains, through the Internet, an infringing copy of a copyright work for personal use or enjoyment, and not for profit, should be subject to criminal liability.

     We will also need to carefully assess if the widening of the criminal net might bring unintended consequences that undermine other values treasured by the community. For instance, some would argue that if downloading activities are criminalised, users might refrain from obtaining any copyright works from the Internet environment for fear of attracting criminal sanctions unless they are confident that copyright authorisation is available. However, for some copyright works, it may not be easy to ascertain their copyright ownership or identify the copyright owners.  

Protection of copyright works transmitted to the public in all forms of communication technology

     Another issue that we will look at in the consultation exercise is whether our copyright protection regime can accord adequate protection to copyright works disseminated to the public in whatever technologies that may emerge in the future, including convergence between different media platforms.  

     At present, our Copyright Ordinance has given various exclusive rights to copyright owners.  These include the right to make available copyright works on the Internet so that users can access the works at a time and place individually chosen by them, the right to broadcast a copyright work using wireless telegraphy, and the right to include a copyright work in a cable programme service. Infringement of these rights may incur civil liability.

     Copyright owners are concerned that the meanings of words like "making available", "broadcast", or "cable programme" in our law may not be adequate to cope with emerging technological developments. Hence, it is for consideration if copyright protection is to be expressly accorded to copyright works being disseminated to the public in whatever form of communication technology as may emerge in the future. If so, we would also need to consider whether civil remedies as well as criminal sanctions should be introduced against the related infringement. Those who support this would argue that copyright protection should encompass all future technological developments, thus obviating the need to review our copyright law whenever new technologies emerge. However, others may be concerned about the possible impact of this "cover-all" approach which would in effect vastly expand the scope of copyright protection, especially if criminal sanctions are to be introduced.  

Role of OSPs in relation to Internet piracy

     In reviewing our copyright protection regime in the digital environment, it would be an obvious omission if we do not look at the role of online service providers (OSPs) in the fight against Internet piracy.  

     At present, copyright owners rely on OSPs' voluntary cooperation in removing infringing materials from their service platforms, or in blocking access to such materials identified by the owners.  Some copyright owners consider that such voluntary cooperation is not adequate to address the Internet piracy problem. Some of them have suggested that OSPs should be held liable for the online piracy activities occurring on their service platforms under specified circumstances.  Others consider that certain notice and takedown procedures should be introduced into the Copyright Ordinance for OSPs to follow. Compliance with the procedures could exempt the OSPs from liability for damages or criminal sanctions.  

     We need to carefully consider if it is reasonable and fair to impose liability on those OSPs who do not take part in the piracy activities occurring on their service platform. We also need to avoid over-regulating the operation of the OSPs, which may stifle the development of this highly competitive sector.  

     Apart from legislative means, we should not leave out the possibility of pursuing the non-legislative route. For instance, is it possible for the copyright owners and OSPs to work together and map out certain guidelines or a code of practice binding on all operators so as to facilitate copyright owners to combat online piracy activities? Is it possible for OSPs to tighten up their service contracts with their clients to put in place measures against repeat infringers?  

Assisting copyright owners to take civil action

     Another issue that we will put forward for consultation is how we could facilitate copyright owners in taking civil actions against online infringers. In this respect, we will look at whether a relatively quicker and inexpensive procedure should be provided to copyright owners to assist them to obtain the personal particulars of online infringers for initiating infringement proceedings. For example, should OSPs be mandated under the law to keep records of their clients' online activities for a specified period or whether this should be done through the industry's self-regulatory code of practice?  

Other issues to be covered

     A number of other issues will be covered in the consultation document. For example, they include (a) whether statutory damages should be introduced for copyright infringements to alleviate the burden of copyright owners in substantiating their loss in infringement proceedings, and (b) whether and, if so, how the existing exemption for temporary reproduction of copyright works in the digital environment should be expanded.  

Concluding remarks

     Ladies and gentlemen, I have just given you an overview of our existing endeavours in combating the Internet piracy problem. I have also given you an account of the key issues that will be addressed in greater depth in the public consultation exercise that the Government is about to launch shortly. No doubt, there would be strong and divergent views on these issues from different sectors. This is why thorough discussion among all stakeholders is essential before we put forward concrete proposals, which hopefully would command a broad consensus within the community and strike a reasonable balance between different and sometimes conflicting interests.  So I look forward to hearing from you and working with you in the coming months on how we can collectively take the matter forward.

     Thank you.  

Ends/Thursday, December 14, 2006
Issued at HKT 16:43