INTE

LLECTU

AL

PROPE

RTY

& USER

RIGHTS

IN D

IGITA

L

ENVIRONMENT

11

/ 4/ 2

01

4 O

T T AW

A– H

KU

CO

NF E

RE

NC

E

Charles MokLegislative Councillor

(Information Technology)

2

Image credit: lifehacker

Freedom of expression

Intellectual property rights Access to

information and knowledge

3

Free flow of information: Fundamental for access to knowledge

and cultureCopyright protection in digital

environment: Increasingly used to discourage

creativity?

How to draw the line of public interest?

DERIVATIVE WORKS: EXAMPLE OF TRANSFORMATIVE USE

4

Altered pictures/videos Image/video capture

Streaming of video game playing

PARODY AND CURRENT AFFAIRS

5

Cartoon to promote rally against national education curriculum 2012

Chief Executive election 2012

INTELLECTUAL PROPERTY IN DIGITAL ENVIRONMENT

• HK’s talk of updating Copyright Ordinance since 2006 for a technology-neutral communication right

• Copyright (Amendment) Bill 2011 stalled

• Netizens worried over parody, asked for exemption - “more than trivial economic prejudice”

6

“NO to Internet version of (Basic Law) Article 23”

Image credit: Neo Democrats

2013 CONSULTATION: TREATMENT OF PARODY UNDER THE COPYRIGHT REGIME

3 options for the treatment of parody, satire, caricature and pastiche

•Option 1 Clarifying existing provisions on criminal offences•Option 2 Introducing a criminal exemption•Option 3 Introducing a fair dealing exception

7

NETIZENS ARE SUSPICIOUS

8

Traps set to kill derivative worksPolitical tool to annihilate the online media

THE DEBATE

9

Copyright

owners

Netizens

• Protect interests of artists by existing regime is enough

• Exemptions might undermine copyright protection

• Call for retaining civil/criminal liabilities

• Firmly reject UGC (non-compliant with TRIPS Agreement)

• All types of derivatives works should be given exemptions from criminal and civil liabilities

• Uphold freedom of expression and spur creativity

• Advocate the concept of User Generated Content (UGC) based on Canadian model

Middle ground?Focus on large scale

copyright infringement

GOV’T PROPOSAL AFTER CONSULTATION

“To balance different interests of stakeholders in society, public interest is widely accepted as the overriding justification of exceptions under our copyright regime”

“Broad principles of balancing interests and international obligations must be translated into legislative language in our copyright regime in the local context.”

“…inclusion of an element of imitation or incorporation of certain elements of an underlying copyright work, creating comic or critical effects in general.”

10

Source: The Administration’s paper to the Legislative Council Panel on Commerce and Industry, 18 March 2014 (CB(1)1072/13-14(05))

ENLARGE THE CURRENT SCOPE

OF EXEMPTION

11

Some examples of activities involving copyrighted works:

• Mashups/remixes/sampling/altered pictures/videos

in response to current and political events

• Image/video capture or text excerpts used on blogs and social media

• Video game playing clips

• Homemade videos

ACTIVITIES DEEMED OUTSIDE OF SCOPE FOR EXEMPTION

“Earnest performance of copyright works” (song singing)

12

How about street performers uploading videos?

Image source: Facebook of street singing group ‘The Flame’

FURTHER PROPOSALS

• Refinement to Option 1 (emphasis on ‘substitution for the original work’ rather than more than trivial economic prejudice)

• Rejected exemptions for UGC: hard to define, unnecessary with refined option 1

• ‘Safe harbour’: limit ISPs’ liability and deal with trivial infringement cases through ‘notice and take down’

13

MORE QUESTIONS?

• Definition of behaviour for ‘special treatment’ – vague?

• Works created ‘in response to current events’ can be exempted: where is the line drawn?

• Can we rely on copyright holders not suing creators of derivative works? Is protection enough?

• Fair dealing: how will ‘transformativeness’ be interpreted?

• Would ‘safe harbour’ be abused to increase burden on ISPs to the point where they self-censor user contents to avoid legal liability?

14

PUBLIC DISCUSSION NEEDED

• Can our copyright laws keep up-to-date with technology advancement?

• More collaborative ways to create and share digital content

• Besides parody, other common practices in digital world is not protected and ambiguous in the laws

• Generate more debate towards more free and open copyright regime

15

LOOKING AHEAD

• How to expand the public domain and reflect public interest in copyright ordinance

• Promote users’ rights beyond open licensing

• Reform to remove ‘red tape’ inhibiting innovation and economic development

16

THANK YO

U!

Charles MokLegislative Councillor (Information Technology)Email: charles@charlesmok.hkWebsite: www.charlesmok.hkFacebook: Charles Mok 2012Twitter: @charlesmokWeibo: charlespmok

17