The lapsed Copyright (Amendment) Bill 2011 (which was covered in our previous article “Will Derivative Works / Parodies Attract Criminal Sanction under the Copyright (Amendment) Bill 2011?”) was revised and introduced to the Legislative Council as the Copyright (Amendment) Bill 2014 pending resumption of second reading debate.
Prejudicial communication offences
To clarify what amounts to the Extent, the 2011 Bill introduced the “more than trivial economic prejudice” concept under which a non-exhaustive list of factors was introduced for the court to consider in determining on the Extent. Such non-exhaustive list has been criticised for being imprecise, resulting in legal uncertainty and having a chilling effect on freedom of expression. Accordingly, the 2014 Bill has dropped the “more than trivial economic prejudice” threshold as well as the non-exhaustive list and instead stated that the court may take into account all circumstances and focus on the factor of economic prejudice, which will largely depend on whether the infringement would amount to substitution for the original copyright work.
New copyright exceptions for parodies
The purposes covered by the fair dealing exceptions include the purpose of parodies (imitation of the style of a particular writer for comic effect), satire (use of humour or ridicule to criticise people’s stupidity or vices), caricature (depiction of a person with exaggerated distinguishing characteristics for comic effect) or pastiche (artistic work that imitates that of another work, artist or period). In view of other possible means that may be used for expression of views or comments on current events, the 2014 Bill introduced additional fair dealing exemptions for the use of copyright works for commenting on current events and limited quotation (to an extent which is not more than is required by the specific purpose of its use) of copyright works.
During the consultation for the 2014 Bill, the concept of user generated content (“UGC”) surfaced which covers the scenario where a fan of a cartoon character set up a non-profit making website (for sharing his interest in the cartoon character) containing copyright images of the cartoon character. Although it was proposed that UGC should also be covered by fair dealing exception, the concept was not adopted as a subject of exception in the 2014 Bill on the ground that it is still unsettled and developing.
Liability of online service providers (“OSP”)
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2015