Commerce and Economic Development Bureau issues clarification on Copyright (Amendment) Bill 2011
In response to recent reports on the Copyright (Amendment) Bill 2011 suggesting that all online sharing activities will become illegal after the passage of the Bill, a spokesman of the Commerce and Economic Development Bureau reiterated today (April 24) that in proposing a technology-neutral communication right in the Bill, the Government has made it clear in the new section 28A(5) that a person does not communicate a work to the public if he does not determine the content of the communication.
The spokesman said, "In other words, if a netizen is not the uploader of certain online material, and he merely shares a hyperlink which grants access to such material on a social networking platform, he is not communicating the material to the public. In any event, a hyperlink is not a copyright work. Therefore, any claim that the Bill 'will prohibit all online sharing activities' is unfounded.
"The Bill does not contain any provision targeting derivative works. A derivative work that does not constitute copyright infringement under the existing Copyright Ordinance today will remain so after passage of the Bill. Freedom of expression on the Internet will not be affected by the Bill in any way," the spokesman added.
Regarding the suggestion that the Bill should provide an exception for derivative works, the spokesman said, "Introducing a copyright exception for derivative works is liable to change significantly the existing balance of interests between copyright owners and users under the Copyright Ordinance. While the case for introducing such an exception has been the subject of policy debates in several overseas jurisdictions, a commonly accepted legal treatment for derivative works is yet to emerge. In the circumstances, we do not consider it prudent to provide such an exception in Hong Kong outright without prior public consultation.
"After the passage of the Bill, the Government will study the proposed exception for derivative works including consultations with stakeholders, taking into account the experience of other common law jurisdictions in handling such copyright exception," the spokesman said.
"The Government is committed to promoting creativity. At the same time, we encourage members of the community to respect the copyright of others."
Tuesday, April 24, 2012