Room for Parody in Hong Kong?

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Background
In June 2011, the Government introduced the Copyright (Amendment) Bill 2011 (the “Bill”) to the Legislative Council (the “LegCo”) to update the Copyright Ordinance (Cap. 528) to widen the scope of protection of copyright works in the digital environment. The Bill, among other things, introduced a technology-neutral exclusive right for copyright owners to communicate their works through any electronic means. This led to wide-ranging public concern on the potential criminal liability attached to parody and eventually the Bill lapsed in 2012.

On 11 July 2013, the Government launched a three-month consultation to invite public views on the proposed treatment of parody in the copyright regime.  This article gives an overview of the current legal position regarding parody in Hong Kong and in other jurisdictions and summarizes the three options put forward by the Government in the consultation paper. What is Parody? There is no unified legal definition of parody internationally. However, parody broadly refers to works that imitate or incorporate certain elements of other’s work (usually copyrighted) for the purposes of creating comic or critical effects.  Common examples of parody in Hong Kong include combining existing news photos or movie posters with pictures of political figures, providing new lyrics to popular songs and editing a short clip from a television drama or movie to relate to a current event. Current Legal Position in Hong Kong Under the current copyright regime, only parodies that encompass substantial part (in terms of quality but not quantity) of the underlying copyright work constitute copyright infringement.  However, the creation of parody may not attract any liability if it falls into any of the following exemptions:- 1.          the parody is created with the consent from the copyright owners, for instance, by way of an appropriate Creative Commons (CC) licence[1]; 2.          the parody is created from works in the public domain with expired copyright[2]; and 3.          the parody created falls within the fair dealing exception for the purposes of education, research, private study, criticism, review and news reporting subject to certain qualifying conditions.   A person may attract civil liability for copyright infringement if he creates an infringing parody that falls outside the above exemptions.  Moreover, a person may be criminally liable if he/she distributes infringing parodies to the public in the course of any trade or business or to such extent as to affect prejudicially the copyright owner. Approaches in Overseas Jurisdictions There is no universal approach in treatment of parody and each jurisdiction adopts its own approach.  In Australia and Canada, a copyright exception is provided for the fair dealing of parody and satire with no statutory definition of those terms.  Australian courts employ an objective approach in assessing “fairness”.  Relevant factors include whether the infringing material is published or unpublished; the nature of the material and its use; the possibility of obtaining permission from the copyrights owners and whether there has been any impropriety. In the UK, while the existing copyright law does not provide for any specific exemptions for parody, the UK Government has decided to introduce a fair dealing exception in relation to parody, caricature and pastiche[3]. In the US, there is no specific copyright exception for parody but an open-ended fair use exception covering acts done for the purposes of criticism, comment, news reporting, teaching, scholarship or research, etc. The Three Options In the consultation paper, the Government put forward the following three options in relation to the treatment of parody:- Option 1: Clarification Option 1 clarifies the provisions for criminal sanctions under the Copyright Ordinance regarding the existing prejudicial distribution offence and the proposed prejudicial communication offence. The Government proposed that when assessing the magnitude of economic prejudice, the court shall adopt the test of “more than trivial economic prejudice” and take into account other relevant factors including the nature of the work, the mode and scale of distribution/communication and whether the distribution/communication amounts to a substitution for the work. Option 2: Criminal exemption Option 2 provides a criminal exemption to specifically exclude parody from the existing prejudicial distribution offence and the proposed prejudicial communication offence. It is specified that any distribution or communication of parody would not attract criminal liability if certain qualifying conditions are met.   The Government invites public views on the subject matter of the exemption, definition of parody and qualifying conditions. Option 3: Fair dealing exception Option 3 introduces a fair dealing exception for parody. The exception provides that creation, distribution and communication of parody would not attract any civil or criminal liability so long as the act is a fair dealing act.  A non-exhaustive list of guiding factors would be provided in determining fairness. For example, the court shall consider the purpose and nature of the dealing, the nature of the work, the amount and substantiality of the portion dealt with in relation to the work as a whole and the effect of the dealing on the potential market for the work. Conclusion As parodies are gaining popularity in Hong Kong in recent years, there is a need to achieve a fair balance between the legitimate interests of the copyright owners and other public interests such as freedom of expression. In light of the rapid and wide dissemination of parodies in the digital world, this topic is likely to continue to arouse heated debate in the public.


[1]     A CC licence is a license devised by Creative Commons to be adopted by a copyright owner to authorize the use of his/her works by others based on certain preset terms and conditions. [2]     Subject to certain exceptions, copyright in literary, dramatic, musical or artistic work expires at the end of the period of 50 years from the end of calendar year in which the author dies. [3]     A work which imitates the style of previous work.

 

IMPORTANT:
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 © 2013