27 October 2016
Leung Chun-ying and other local officials are often subjects of caricature and pastiche in 'secondary creations' by netizens. Photos: HK Golden, internet
Leung Chun-ying and other local officials are often subjects of caricature and pastiche in 'secondary creations' by netizens. Photos: HK Golden, internet

Why we must not ignore ‘cyber Article 23′

Just as the bitter row over the appointment of a new chairman of the University of Hong Kong council seems to have come to a halt after alumni voted by a landslide against widely tipped candidate Arthur Li Kwok-cheung, fresh political kerfuffles have broken out in the city.

The three issues at stake involve profound legal implications and epitomize how the Leung Chun-ying administration is scheming to eviscerate Hong Kong’s legal system in an attempt to model it on that of China – a country that claims it upholds the rule of law.

The first issue is when and how a police superintendent, now retired, who allegedly beat protesters with his baton during last year’s Occupy movement, will be charged.

Police have been inconceivably tardy and evasive in the face of repeated requests from the Independent Police Complaints Council to prosecute the officer, kicking the can down the alley into the hands of the Department of Justice.

But the department has also failed to take any formal action on the case, so that the police watchdog is now looking to issue a petition to the chief executive’s office for a timely decision.

The second issue is the co-location of boundary control arrangements at the Guangzhou-Shenzhen-Hong Kong Express Rail Link’s West Kowloon terminus.

The mainland side has been hinting, through legal scholars, that the central government has the power to “cede” a portion of Hong Kong’s territory – a certain area inside the terminus – for occupation by Chinese immigration and customs officials.

The third issue is the Copyright (Amendment) Bill, dubbed “Article 23 on the internet” — an allusion to national security legislation that Article 23 of the Basic Law requires Hong Kong to enact but which it has been unable to do in the face of widespread public opposition.

The bill will be given its second reading Wednesday in the Legislative Council.

It defines the scope of freedom of expression for the media and for cyberspace, and the government is determined to push it through this time after failed attempts in previous years.

The pan-democratic bloc has, however, put forward a slew of amendments, and radical legislator Raymond Wong Yuk-man has threatened to filibuster the bill.

For a long time, most Hongkongers ignored the proposed legislation and the severe consequences it may entail.

Now that it stands a chance of being enacted, no one should hide his head in the sand any longer.

The government first gazetted the Copyright (Amendment) Bill in June 2011 and introduced it to Legco.

Compared with established laws in western jurisdictions, the proposed copyright law was considered retrogressive, as it was skewed in favor of copyright owners (mostly conglomerates) at the expense of the public’s right of access to information.

The bill even covered “secondary creations” – almost ubiquitous on the internet in the form of satire, parody, caricature or pastiche – in its definition of the infringement of intellectual property rights.

By contrast, similar laws overseas generally impose restrictions on the rights of copyright owners and make allowances for using partial or the entire copyrighted content in political and religious discussion and satire without prior consent from the copyright owner.

The 2011 bill’s second reading was scrapped when People Power legislator Albert Chan Wai-yip proposed a total of 1,700 amendments.

In July 2013, the government released a new consultation paper including some trivial compromises in a fresh attempt to get the bill passed.

Concern groups wanted to insert clear exemption clauses.

The government backed down and gazetted a revised version in June this year.

Nonetheless, as with previous ordinances, the government has been making every effort to ensure that the local legislation toes the line of mainland laws and their intent.

When borrowing from other common law jurisdictions, the government inevitably follows the most rigid restrictions on the people’s civil rights, but when it comes to its own powers, it doesn’t hesitate to replicate the most moderate and liberal provisions.

On the surface, the Copyright Law of the People’s Republic of China, promulgated in 1990 and subsequently amended in 2001 and 2010, looks similar to those in western countries.

But the devil is in the details.

Article 22 of the law, which restricts the rights of copyright owners, provides that necessary citation or representation of copyrighted content in newspapers, periodicals, radio or TV programs for the purposes of news reporting does not constitute infringement.

Note, however, that the clause deliberately omits other purposes, such as commenting or debating.

Political commentary, satire and pranky representation of copyrighted content for non-commercial purposes are not exempted by the Chinese copyright law.

In Hong Kong, the first draft of the Copyright (Amendment) Bill 2011 didn’t make any allowances for non-commercial use either.

The latest revision, tabled this year, adds new exemptions: fair dealing with a work for the purpose of parody, satire, caricature, pastiche or commenting on current events does not infringe any copyright in the work.

In the western world, there are two principles underlying exemption from copyright: “fair use” in the United States and “fair dealing” in Europe.

The exemption list of the US Copyright Act, enacted in 1976, contains the phrase “such as” when enumerating allowable uses, making the list open to changes and additions, in line with common law practice, in which once a new exemption is determined by a judge, it will serve as a precedent for future cases.

European copyright laws, based on “fair dealing”, are generally more conservative, with little flexibility or room for maneuver.

The Hong Kong government has adopted the “fair dealing” principle in its bill.

Canada is a pioneer in bringing its laws in sync with the cyber era.

Its Parliament passed in 2012 the Copyright Modernization Act, which relaxes restrictions on user-generated content on the internet, since netizens, who have little awareness of copyright, like to create and share free content.

This is exactly what Hong Kong’s internet users have been demanding from the government.

But why did the administration volunteer to compromise, although objections from the public have been largely lukewarm?

It was because of Washington.

Hong Kong’s existing Copyright Ordinance is outdated and cannot properly protect the interests of US owners of sensitive copyrighted properties purchased in the city.

Businesses operating in Hong Kong, whether fully local or China-invested, will surely suffer if Washington makes specific reference to the city in its annual Special 301 Report, compiled by the Office of the US Trade Representative to identify trade barriers to US firms and products resulting from misconduct relating to intellectual property rights.

Washington has been pressurizing Hong Kong’s authorities to amend the law.

To pass the bill, cooperation from the pan-democratic camp is crucial, and hence the Leung administration has had to soften its stance.

Still, more public support is needed to make the bill a liberal one when Legco resumes debate on the legislation Wednesday.

This article appeared in the Hong Kong Economic Journal on Dec. 8.

Translation by Frank Chen

[Chinese version 中文版]

– Contact us at [email protected]


Netizens had a field day creating parodies of Leung Chun-ying’s wife, Regina Leung Tong Ching-yee. Photo: internet

President Xi Jinping has also appeared in ‘secondary creations’ on the web. Photo: internet

Members of the pan-democratic camp rally outside the Legco complex against the copyright bill. Photo: HKEJ

Former full-time member of the Hong Kong Government’s Central Policy Unit, former editor-in-chief of the Hong Kong Economic Journal

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