Views Sought On Copyright Protection Proposals In HK

by Mary Swire, for LawAndTax-News.com, Hong Kong

16 April 2008

Hong Kong's Commerce and Economic Development Bureau is inviting public views on its preliminary proposals to strengthen copyright protection in the digital environment.

Speaking at the Legislative Council's Commerce & Industry Panel meeting on Tuesday, Secretary for Commerce & Economic Development, Frederick Ma said that the proposals will form the basis of the next round of engagement with stakeholders and the public for building consensus on the way forward, announcing that:

"Subject to the outcome of further public consultation, we intend to firm up the legislative package in late 2008 or early 2009."

In the consultation paper, the Bureau proposed introducing a right of communication covering all modes of electronic transmission for copyright works, with related criminal sanctions against the breach of this right in specific circumstances.

It is believed such a right can help copyright owners exploit their works in the digital environment and provide an environment conducive to the development of digital content and advanced technology in digital transmission.

With regard to what criminal sanctions should be brought for breaches of this right, the Government stated that it is mindful that a blanket criminalisation of all unauthorised communication might cast the net too wide, and entail far-reaching unwanted implications.

It was therefore proposed that criminal sanctions be introduced for acts of making or initiating unauthorised communication to the public in certain defined circumstances.

The Bureau also suggested introducing a copyright exemption for temporary reproduction of copyright works by online service providers (OSPs), which is technically required for (or enables) the transmission process to function efficiently.

This exemption will cover the "caching" activities undertaken by OSPs which help save bandwidth and are indispensable for efficient transmission of information online.

Another recommendation is to facilitate the forming of a voluntary code of practice for OSPs in combating Internet infringements.

The bureau additionally proposed enshrining in law additional factors to help the court in considering the award of additional damages, in recognition of the fact that the process of proving the extent of actual loss, particularly in the digital environment, is often fraught with difficulties.

In launching the next round of public engagement, the Government has proposed consulting the public on the introduction of a media shifting exception, which will provide greater flexibility and convenience for the private use of copyright works to general users.

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