Background to the Copyright Regime in Hong Kong

The copyright regime in Hong Kong is governed by the Copyright Ordinance (Cap.528) (“CO”), which came into effect in 1997. Since 2006, the Hong Kong government has conducted rounds of public consultations, introduced two amendment bills respectively in 2011 (the Copyright (Amendment) Bill 2011) (“2011 Bill”) and 2014 (the Copyright (Amendment) Bill 2014) (“2014 Bill”) into the Legislative Council with an attempt to accommodating the rapid advancements and innovations in technology. Unfortunately, the 2011 and 2014 Bills were unable to proceed as some members in the Legislative Council asserted the view that freedom of creativity or expression could possibly be compromised under the proposed legislative provisions.

The Commerce and Economic Development Bureau published a consultation paper on 24 November 2021 (“2021 Consultation”) reintroducing the key legislative proposal set out in the 2014 bill including some new copyright exceptions.

The 2014 Bill

The 2014 Bill focuses on five key areas as follows:

1.       Introduction of a new technology-neutral exclusive communication right for copyright owners to communicate their works to the public through any mode of electronic transmission, for example streaming. This introduction will bring Hong Kong’s copyright regime in line with the practices of many jurisdictions, such as the United Kingdom (“UK”) (2003), Singapore (2005), etc.

2.       Introduction of criminal sanctions against those who make unauthorised communications of copyright works to the public for profit or reward or to an extent which will cause prejudice to the copyright owners.

3.       Revision of the scope of permitted acts in relation to copyright works and the introduction of new copyright exceptions for the education sector, libraries, museums, archives, temporary reproduction of copyright works by online service providers, and media shifting, as well as new fair dealing exceptions to cover (i) use for the purposes of parody, satire, caricature and pastiche; (ii) use for the purpose of commenting on current events; and (iii) use of a quotation.

4.       Introduction of “safe harbour” provisions to limit the liabilities of online service providers for copyright infringement.

5.       Additional Damages in Civil Cases.

The 2021 Consultation

The 2021 Consultation seeks to address four new issues:

1.        Should the current exhaustive approach by setting out all copyright exceptions be maintained? – In Hong Kong, there are over 60 exceptions in Part II of the CO which allow users to make reasonable use of copyright works in certain circumstances without the owner’s consent. Some jurisdictions such as Singapore and the United States (“US”) also provide exceptions for non-exhaustive purposes, on the basis of whether a particular use of a work is fair. It remains the case that most common law jurisdictions, including Hong Kong still prefer an exhaustive exception approach.

2.        Should parties be restricted from contract limiting or “overriding” and copyright exceptions? – Under the current copyright regime, copyright owners may grant authorisation or license to users through commercial contracts for the use of their works in accordance with the terms and conditions agreed. The parties are free to exclude the application of the statutory exceptions under CO for certain specific uses of copyright work without the owners’ consent. Some jurisdiction such as the UK prohibits parties’ freedom to exclude or limit certain copyright exception. The government’s current preference is to not interfere with the freedom to agree contractual terms between the parties.

3.        Should specific provisions on illicit streaming devices (“ISDs”) be introduced to govern devices used for assessing unauthorised contents on the internet, including set-top boxes and pre-loaded software applications? – Although the CO does not have specific provisions to deal with ISDs, it contains various provisions to deal with online copyright infringement activities that could be applied to combat ISDs, for example section 273A of the CO which imposes civil liability on a person who knowingly does an act which circumvents a technological measure applied to a copyright work. In this connection, the government’s position is to maintain the status quo.

4.        Should a copyright-specific judicial site blocking mechanism be introduced? – There are currently no copyright-specific statutory provisions for site blocking injunctions in Hong Kong. Section 21L of the High Court Ordinance, Cap.4 (“HCO”) provides for general injunctive reliefs under which copyright owners may consider seeking an appropriate injunction from the court where there is evidence of large scale infringing activities originating from identified online locations. The power to order website blocking injunctions is specifically provided for under the UK, Australian and Singapore law. The Government’s current position is that it is not necessary to introduce a copyright-specific judicial site blocking mechanism at this point in time.

The consultation paper further addresses the following three potential areas for further studies:

1.        Extension of the term of copyright protection - Japan, Singapore, South Korea, the UK and the US have extended the term of protection under their copyright regimes to 70 years after the life of the author.

2.        Introduction of specific copyright exceptions for text and data mining - Some overseas jurisdictions including the EU, Japan, Singapore and the UK have introduced text and data mining exceptions in their copyright laws to facilitate research and innovation.

3.        Artificial Intelligence (“AI”) and Copyright.

Are the proposed amendments in line with international norms?

However, are the proposed amendments sufficient to keep up with the ever-changing technology landscape?

In a policy statement “National AI Strategy” published by the UK government the UK government has expressed its intention to make the country a world leader in AI, highlighting the potential for economic growth in an environment in which start-ups, scale-ups and technology leaders are incentivised to research, develop, and deploy AI technology. The UK Intellectual Property Office then launched an open consultation to debate how the country's existing IP legislation should be adapted to address the ongoing development of AIs and their use in the inventive process. The European Commission also addressed AI-related challenges and presented a concrete plan in its proposal for a draft AI Regulation published on 21 April 2021.

On the other hand, the new amendment bill based on the 2021 consultation would just be more or less similar to the 2014 Bill as explained above unless there are strong public views to introduce changes to the four new issues mentioned above. It appears that the Hong Kong copyright law has fallen behind other jurisdictions.  

That said, the fact that the consultation paper refers AI as a “possible” topic for further discussion shows that the Hong Kong government’s intention to further update Kong’s copyright protection regime to keep up with modern development. Whilst the Hong Kong copyright regime is still lagging in protection of various kinds of existing and new forms copyright works, the 2021 consultation is definitely a welcome step in the right direction.