Currently, copyright owners and parodists are at peace with each other. Some parodists even have the acquiescence of copyright owners to create parodies. As such, why should there be a consultation? Will the proposals put forward by the government restrict freedom of expression?
At present, the distribution of a parody under any of the following circumstances does not constitute copyright infringement -
- the copyright owner has agreed or acquiesced
- the copyright protection in the underlying work has expired
- only the ideas of the underlying work have been incorporated
- only an insubstantial part of the underlying work has been reproduced
- one of the permitted acts under the existing Copyright Ordinance (such as for the purposes of research, private study, education, criticism, review and news reporting) applies.1
The proposals put forward by the Government will not change the above legal positions and will not restrict freedom of expression.
- On the contrary, in respect of acts that are done without the agreement or acquiescence of the copyright owner, the three proposals have the effect of clarifying or raising the threshold for alleging copyright infringement, thus further protecting freedom of expression.
- Regarding some parodies that are suspected of having infringed copyright, the three proposals provide different legal justifications, in appropriate circumstances, to clarify that they fall outside the criminal net, or exempt them from criminal, and even civil, liabilities. Parodists will enjoy clearer and greater protection under the law.
- According to the existing provisions in the Copyright Ordinance, a person who without the licence of the copyright owner:-
Note 1 – There may be criminal liability if the selling or letting for hire is for the purpose of or in the course of any trade or business.
- sells or lets for hire an infringing copy of a work [see Note 1];
- distributes for the purpose of or in the course of any trade or business an infringing copy of a work (hereinafter referred to as “commercial distribution”) [see Note 2]; or
- distributes (otherwise than for “commercial distribution” as mentioned in (b) above) an infringing copy of a work to such an extent as to affect prejudicially the owner of the copyright (hereinafter referred to as “prejudicial distribution”), may be subject to civil or criminal liability (no matter whether it is a parody or not).
Note 2 – There may be criminal liability if the distribution is for the purpose of or in the course of any trade or business which consists of dealing in infringing copies of copyright works.