Transplanting the Canadian UGC Exception to Hong Kong: Part 3

Transplanting the Canadian UGC Exception to Hong Kong: Part 3

In Parts I and II of this series of blog posts, I discussed the ongoing digital copyright reform in Hong Kong. Specifically, I called for the transplant of the Canadian UGC exception to the jurisdiction, as part of an effort to enlarge the creative, political, social and cultural space of individual internet users.

Since the last blog post, the Hong Kong government has introduced a new copyright amendment bill into the Legislative Council. Released in mid-June, this bill retained many of the less controversial aspects of the old bill, such as the introduction of a new right of communication to the public, civil and criminal remedies for violating this right, new factors used to determine copyright damages, a new code of practice for online service providers and a fair dealing exception for media-shifting purposes.

Also included are new fair dealing exceptions for parody, satire, caricature, pastiche, quotation and commenting on current events. Drawing on the close to 2500 comments the government received through the latest consultation, these exceptions seek to strike a more appropriate balance between copyright holders and internet users than the bill’s predecessor.

Although the government did not introduce a UGC exception as advocated by internet user groups and their supporters, it embraces the least restrictive legislative option outlined in the consultation document - that is, the introduction of a fair dealing exception for four specific categories of work (parody, satire, caricature and pastiche). The current bill also introduced two additional exceptions: one for quotation and the other for commenting on current events.

It remains unclear how the current bill will be amended during the legislative debate – or even whether the bill will be adopted at all. Nevertheless, it is timely to review some of the objections the copyright industries have raised thus far in regard to the introduction of new exceptions for parody, satire, caricature and pastiche.

Although these objections were raised during the 2013 consultation and in the run-up to the drafting of the current bill, the industries’ arguments are not limited to the consulted exceptions. Generic by nature, these arguments can easily be recycled in efforts to oppose the introduction of other copyright exceptions in Hong Kong or in other jurisdictions.

The review of these objections is therefore important. Such a review will provide useful information to policymakers and legislators in Hong Kong (as they consider the current bill). It will also inform policymakers, legislators, commentators and activists from around the world (as they push for reforms that seek to meet the needs and interests of internet users).

In a forthcoming article, I scrutinize seven of the copyright industries' most widely used arguments against the introduction of new copyright exceptions. This article continues the line of criticism I started in an earlier article highlighting the ‘confuzzling rhetoric’ used by both the supporters and critics of reforms that seek to strengthen copyright protection and enforcement.

While the copyright industries are by no means the only major group using confuzzling rhetoric to advance their position, it is important that policymakers and legislators critically evaluate the industries' arguments. Failing to do so would lead to wrong policy choices that harm internet users and the public at large.

Peter K. Yu, an affiliated scholar of IP Osgoode, holds the Kern Family Chair in Intellectual Property Law at Drake University Law School in the United States. Born and raised in Hong Kong, he serves as the general editor of The WIPO Journal published by the World Intellectual Property Organization and chairs the Committee on International Intellectual Property of the American Branch of the International Law Association.