23 October 2018
Concern groups stage a rally against the copyright amendment bill. Photo: RTHK
Concern groups stage a rally against the copyright amendment bill. Photo: RTHK

Uneasy about the new copyright bill? Be more transformative

Leung Chun-ying has showed the many legal pitfalls in the new copyright bill when he uploaded a video clip of himself singing at a private function.

Faced with a barrage of copyright infringement accusations, he had to file a license application to the Composers and Authors Society.

Leung’s subordinates rushed to defend their boss: Director of Intellectual Property Ada Leung Ka-lai said Leung’s use of the song falls under the definition of “fair use” as he is a public figure and the clip can be considered news rather than entertainment.

So if this happened to an ordinary citizen, he could receive a court summons?

The cyberworld is always the freest public space. That’s exactly why civil disobedience in this domain takes a new, more individualized form as netizens defend their rights and freedoms.

In a bid to allay netizens’ mounting unease, the government information services department dispatched diagrams on its Facebook account to explain aspects that may be the concern to individual internet users.

But all these “take it easy” assurances contradict detailed information on the copyright bill provided by the Legislative Council and the intellectual property department’s official answers to some frequently asked questions.

For instance, streaming computer games live online on platforms like Facebook may constitute an offense unless players make comments throughout the process.

But the bill fails to make clear how frequent these comments should be and whether they can be repeated.

Since the new legislation aims to clarify the threshold of criminal liability, prosecutions may be more likely compared with the past.

The information services department is also yet to clarify if the background music streamed will be covered by the exemption.

Should players mute the music while they stream a game or should they also comment on the music?

The government has deliberately excluded user-generated content (UGC) – an all-embracing concept referring to altered pictures and videos, mash-up works, cover versions of songs and numerous other forms of “secondary creations” – from the exemption.

Worse still, the bill adopts the more conservative “fair dealing” principle characterized by a fixed exemption list.

Since UGC can take manifold forms on the internet, how can a closed list be applicable to all the varying situations?

The government has been stressing that copyright infringement resulting in substantial losses to the copyright owner can be considered a crime.

As the bill states, the court needs to consider the facts – if the dealing is of a commercial nature, the amount and substantiality of the portion dealt in relation to the entire work, and the effect on the value of the work – in determining whether any dealing with a work is fair dealing.

Courts in the United States have set precedents about “transformative use”, a generic reference to all the allowable uses under the more liberal “fair use” principle.

The concept refers to using a copyrighted work to serve a new theme or purpose different from the original of the work.

When such uses are “transformative” in nature, they can all be exempted under the copyright law even if the copyright owner incurs substantial losses as a result.

Obviously, satire, parody, caricature and pastiche all fall under the category of “transformative use”.

Copyright laws are drafted not for the sake of copyright owners but to protect and encourage creation by all members of society.

In some cases, the absence of these laws can be more conducive to nurturing creation.

The safest strategy for all netizens is to make their “secondary creations” genuinely creative with marked transformations in form, appearance or theme.

This article appeared in the Hong Kong Economic Journal on Dec. 10.

Translation by Frank Chen

[Chinese version 中文版]

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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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