The Long-Awaited Public Consultation on Updating Hong Kong’s Copyright Regime – Intellectual Property
Hong Kong: The long-awaited public consultation on the Hong Kong copyright regime update
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After seven years of delay, Hong Kong is back in the copyright game.
The Hong Kong SAR government launched a three-month public consultation on updating Hong Kong’s copyright law on November 24, 2021.
After nearly 7 years of delay since the last effort to pass the Copyright (Amendment) Bill 2014 (“Bill 2014”) which was adjourned due to filibuster, the government will conduct a public consultation on various amendments to the existing copyright law to cover issues that were not addressed in the last legislative amendment exercise and also to solicit public opinion on four more Questions.
The government proposes to use the 2014 bill as the basis for updating the Hong Kong copyright regime. The main legislative proposals cover the following five areas, namely:
(1) Grant copyright owners an exclusive, technologically neutral communication right to ensure that the protection granted to them covers their works communicated to the public by any means of electronic transmission;
(2) Introduce penal sanctions against counterfeiting relating to the introduction of the above-mentioned exclusive right of communication;
(3) Introduce two additional statutory factors to be taken into account by the court when assessing whether to award additional damages to copyright owners in civil cases involving infringement, in order to strengthen their protection in the digital environment;
(4) Introduce “safe harbor” provisions to limit the liability of PSOs for acts of copyright infringement of their subscribers on their service platforms, provided that PSOs meet certain prescribed conditions, including taking action reasonable to limit or stop copyright infringement when notified; and
(5) Provide new exceptions to copyright for the use of copyrighted works for three categories of purposes, namely parody, satire, caricature and pastiche; comment on the news; and citation of copyrighted works; and to revise and extend the exceptions on various modes of use of copyrighted works in order to facilitate e-learning; the functioning of libraries, archives and museums; and the relocation of sound recording media.
In addition, the consultation document covers four subjects on which public opinion is consulted:
(i) whether the current comprehensive approach to exceptions should be maintained;
(ii) whether to continue to allow contracts to override legal exceptions;
(iii) whether there should be specific provisions to deal with illicit streaming devices; and
(iv) blocking of legal sites.
The government has stated that it is aware of other emerging issues that need to be addressed and specifically mentioned the following three issues that it believes will be included in future legislative amendments along with other issues:
(a) Extension of the term of copyright protection
(b) Introduction of specific copyright exceptions for text and data mining
(c) AI and copyright
This consultation was long overdue, as Hong Kong’s copyright law lagged behind other jurisdictions. While the protection of the various types of copyrighted works, existing and new, is still lagging behind, it is certainly a step in the right direction.
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