20 November 2018
Greg So blamed the pan-democrats for the failure of the copyright bill, but had he really done his best to get it passed? Photo: HKEJ
Greg So blamed the pan-democrats for the failure of the copyright bill, but had he really done his best to get it passed? Photo: HKEJ

Since when has passing the buck become standard govt procedure?

At last week’s Legislative Council meeting, at which the administration finally, and rather unwillingly, withdrew the Copyright (Amendment) Bill 2014, the obviously aggravated secretary for commerce and economic development, Greg So Kam-leung, didn’t even bother to hide his anger at the pan-democrats for striking down the bill.

He denounced those who took part in filibustering against the bill as the “main culprits who have strangled Hong Kong’s economy and our creative industry”.

As a former civil servant, I can understand the frustration of Secretary So and his colleagues, as thousands of hours of hard work and effort to put together this bill eventually proved futile as a result of the pan-democrats’ well-coordinated filibustering.

However, even though I don’t intend to play Monday morning quarterback here, I believe there was actually a lot more the government could have done to get this bill through Legco.

Instead of pointing fingers at the pan-democrats and blaming everything on them, the administration should reflect on the entire saga and learn the lessons from it.

Frankly, I don’t think the government has done its job properly this time.

In my article published late last year on the bill, I said even though the government had exempted people from criminal and civil liability in certain circumstances — parody or satire, commenting on current events, quoting copyrighted works, temporary reproduction by online service providers, media shifting of sound recordings, and using copyrighted material for educational purposes — these exemptions were not enough to allay public concern about the deteriorating freedom of speech on the internet.

Therefore, I suggested the government introduce one more exemption, under which any individual who uses copyrighted material entirely for non-profit-making purposes should be free from any legal liability.

I noticed that during his conversation with the media, Secretary So said he had done his best to try to get all the stakeholders to reach a consensus by proposing the “limited fair use” clause as a middle-of-the-road proposal, which, to some extent, had quite a lot in common with my suggestion.

However, he said that since both the pan-democrats and the copyright holders were reluctant to accept his proposal, the government had no choice but to withdraw the bill.

It sounds as though the government has done everything it can to get all the stakeholders to find common ground, but is that really true?

Based on my observations, I would say that the answer is “no, it hasn’t”.

In fact, it appears to me the government has only made a half-hearted attempt to get both sides to sit down and talk, and after the initial lukewarm response to its “limited fair use” proposal from both the pan-democrats and the copyright holders — which is understandable, because in politics no one would ever take the first offer from an opponent without trying to bargain for a better deal — the administration simply backed off immediately and withdrew the offer, instead of twisting both sides’ arms further and getting them back to the negotiating table.

Worse still, Secretary So then spent most of his remaining time making sure that all the pro-establishment lawmakers were sitting still in the Legco chamber to secure the quorum, instead of coming up with another proposal to break the deadlock.

Surprisingly, it was Chan Kam-lam, a lawmaker from the Democratic Alliance for the Betterment and Progress of Hong Kong, who took the initiative to get all the stakeholders to sit down and talk, to try to find common ground and break the political gridlock over the bill.

Unfortunately, the so-called four-party talks proved fruitless, not least because the government again didn’t seize the opportunity to put forward another alternative proposal for discussion.

As a result, the talks went nowhere, and the filibustering continued, until the bill was finally withdrawn.

Suffice to say the government’s inaction is as much to blame for the failure of the copyright bill as the filibuster mounted by the pan-democrats.

If the administration had bothered to take a step further and get everybody to sit down and talk it out, the result could definitely have been different.

During his speech after the withdrawal of the bill, Secretary So, apart from lambasting the pan-democrats for stonewalling the bill, didn’t say anything about how he was going to follow up on the issue during the remaining time of his term of office.

Is this the way a responsible government is supposed to be acting?

Since when has “passing the buck to the next administration” become our government’s standard procedure?

This article appeared in the Hong Kong Economic Journal on March 9.

Translation by Alan Lee

[Chinese version 中文版]

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Former Secretary for the Civil Service of the Hong Kong Government

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