The HKSAR Government launched on 24 November 2021 a three-month public consultation on updating Hong Kong's copyright legislation.
After almost 7 years delay since the last effort to pass the Copyright (Amendment) Bill 2014 (“2014 Bill”) that was adjourned due to filibustering, the Government will be conducting a public consultation on various amendments on the existing copyright law to cover the issues that had not been dealt in the last legislation amendment exercise and also to seek the public’s views on four other issues.
The Government proposes to use the 2014 Bill as the basis for updating Hong Kong's copyright regime. The key legislative proposals cover the following five areas namely:
(1) To give copyright owners a technology-neutral exclusive communication right so as to ensure that the protection afforded to them would cover their works communicated to the public through any mode of electronic transmission;
(2) To introduce criminal sanctions against infringement relating to the introduction of the aforementioned exclusive communication right;
(3) To introduce two additional statutory factors for the court to consider when assessing whether to award additional damages to copyright owners in civil cases involving infringement, so as to strengthen protection for them in the digital environment;
(4) To introduce "safe harbour" provisions to limit OSPs' liability for their subscribers' copyright infringement acts on their service platforms, provided that the OSPs meet certain prescribed conditions, including taking reasonable steps to limit or stop a copyright infringement when being notified; and
(5) To provide new copyright exceptions for the use of copyright works for three categories of purposes, namely parody, satire, caricature and pastiche; commenting on current events; and quotation of copyright works; and to revise and expand exceptions on various modes of using copyright works to facilitate online learning; the operation of libraries, archives and museums; and media shifting of sound recordings.
In addition, the consultation document covers four issues which the public’s views are consulted:
(i) whether the existing exhaustive approach to exceptions should be maintained;
(ii) whether to continue allowing contracts to override statutory exceptions;
(iii) whether there should be specific provisions to deal with illicit streaming devices; and
(iv) judicial site blocking.
The Government has stated that it is aware of other emerging issues which needs to need to be addressed and specifically mentioned the following three issues which it claims will be included in future legislative amendments as well as other issues:
(a) Extension of copyright term of protection
(b) Introduction of specific copyright exceptions for text and data mining
(c) AI and copyright
This consultation has a been long awaited, as Hong Kong’s copyright law has fallen behind other jurisdictions. Whilst still lagging in protection of various kinds of existing and new forms copyright works, this is definitely a welcome step in the right direction.