22 Jan 2007 - SCMP A digital dilemma
From Ben Cheng Personal Wiki
Monday, January 22, 2007 A digital dilemma
ROBIN KWONG
Sharing and transferring files across the internet has always been risky. From the beginning there were the hazards of viruses, spyware and malfunctions.
As the traffic in copyrighted material on the internet grew, the movie and music industries began hitting back at so-called internet pirates who they blamed for declining sales. That introduced the added threat of being sued for damages if you were downloading the latest movie or song.
But if the government's latest proposals to amend Hong Kong's copyright laws become reality, unauthorised downloading of copyrighted material - anything from a movie to an advertising jingle or in some cases even a photo from a website - could land you in jail.
Criminalising the unauthorised downloading of copyrighted material is one of the tougher regulations proposed by the government as part of a public consultation on Copyright in the Digital Environment.
The consultation, launched last month and lasting until the end of April, is an attempt to update Hong Kong's copyright laws as technology and public sentiment change. It is also part of the ongoing effort to provide a favourable regulatory environment for "creative industries" by strictly enforcing intellectual property rights.
Other measures, which largely mirror the United States' Digital Millennium Copyright Act (DMCA), include extending copyright protection for materials across different medium, setting statutory damages for copyright infringement, and requiring internet service providers to facilitate enforcement of copyright.
Internet service providers, for example, may be required to keep records of their customers' internet activities and to take down infringing copies hosted on their platforms. One suggestion is for service providers to actively filter or block the transfer of infringing copies.
For the creative industries, the review on copyright of digital works is long overdue. But academics have criticised the consultation as being "shockingly one-sided".
The debate over copyright and the internet rose to prominence in 2005 with the conviction of BitTorrent user Chan Nai-ming for uploading copyrighted movies, which set a worldwide legal precedent. The case is currently under appeal.
Last week, a teenager was sentenced to a one-year probation order in the second such case. The 16-year-old was found guilty of uploading hundreds of movies and songs to his personal website for others to download, an offence the judge called "serious".
Also last week, the conservative US-based think tank Heritage Foundation highlighted in its report that "enforcing intellectual property rights is a problem" even as it ranked Hong Kong as the freest economy for the 13th consecutive year.
A bill amending the copyright laws, but mostly dealing with the law applied to printed works, is being scrutinised by the Legislative Council, and if passed will take effect by the summer.
For the "creative industries", the review on copyright of digital works is long overdue. Ricky Fung Tim-chee, chief executive of the International Federation of Phonographic Industry (Hong Kong Group), which represents Hong Kong's recording industry, says copyright holders have been hit hard by internet piracy. "It's definitely something that needs to be talked about now," he said.
Mr Fung said the government should institute the less controversial provisions quickly and separately, such as defining internet service provider's responsibilities in enforcing copyright. He also suggested creating a separate right to claim damages against circumventing technology used to prevent unauthorised copying.
"Some of the suggestions are already law in other countries," he said. "Copyright holders are punished, currently, because it is difficult to enforce their rights and this encourages society to disrespect those rights."
Intellectual property lawyer Anita Leung Ping-fun, of Baker & McKenzie, who has been following developments in the city's copyright laws, said it was hard for copyright holders to pursue civil remedies under current laws. "If you consider the IFPI cases then you'll see the whole exercise of taking people to court is not easy," she said.
She said the proposals were "definitely in the right direction", especially the provisions on statutory damages and defining the role of internet service providers, which copyright holders have long advocated.
Professor Michael Pendleton, an associate director of Chinese University's School of Law, said all of the suggestions except for criminalising unauthorised downloads were in line with what was happening around the world as countries followed the US in enforcing copyright protection. "All of it seems pretty inevitable except for the downloading provisions," he said, referring to the US including such provisions as part of free trade agreements it has signed with Singapore and Australia.
But the difference, Professor Pendleton said, was that while the US has a wide-ranging "fair use" defence that counteracted legal restrictions, Hong Kong had narrow and specific "fair dealing" defences. The consultation document makes no mention of expanding the fair dealing defence.
"Follow the provisions in the United States, but bring with it the safeguards of fair use," Professor Pendleton said. "Fair use has teeth and adaptability, but fair dealing rights are just so specific."
Canadian academic Michael Geist, an expert in copyright and intellectual property issues, is critical about the absence of fair use provisions in the consultation document.
"I find the consultation document shockingly one-sided," said Professor Geist, Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, in an e-mail interview.
He also argued against following the DMCA approach advocated by the US. "The DMCA is viewed by many as an extreme example of implementing the WIPO [World Intellectual Property Organisation] Internet Treaties. Many countries - including Canada and New Zealand - have begun to distance themselves from the DMCA-style approach," Professor Geist said.
"Indeed, the emphasis on enforcement and stronger penalties without any balancing provisions to address the legitimate concerns of Hong Kong citizens is deeply troubling." Implementing the proposals would have an "absolutely disastrous" effect on innovation and creativity, he said.
"The proposals will damage the ability for network providers to establish innovative products, will damage many consumer rights, and potentially create a chill on research [particularly those involved in security research].
"What is remarkable about the consultation is the complete absence of any analysis, discussion or proposals that address these crucial stakeholders - where are the proposals on fair use? On an alternative compensation system that might embrace P2P [peer-to-peer networks] without the need for lawsuits?"
Professor Geist was also doubtful about whether the provisions would help achieve the Hong Kong government's aim of promoting the creative industries.
"There is no significant evidence that suggests tougher copyright enforcement will encourage and promote the content industries, particularly not at the local level," he said. "Most local content creators have little interest in digital rights management or suing fans. For example, in Canada, many of the best known musicians have formed a group actively opposing P2P lawsuits and DRM use. The proposed policies may benefit foreign-owned entities, but cause real harm to local culture and do little to genuinely promote new creativity and industry."
The proposal has also raised concerns among those closer to home. Ben Cheng Tan-pan, convenor of the Chinese University Student Union's Intellectual Property Issues Watch, said the consultation was only concerned with protecting commercial interests of corporations rather than in promoting creative activity in Hong Kong.
"There is no consideration of how to encourage a community and an atmosphere of creativity [through copyright], such as promoting a `free-to-use' licence like Creative Commons," said Mr Cheng, a third-year student majoring in information engineering.
He also criticised copyright holders for promoting a skewed view of copyright. The comparison to physical theft, an analogy often employed by the movie and music industries, was false, he said. "If we were really to treat copyrights as equivalent to physical properties, why would copyright expire after 50 years but not property rights?" he said. "There is a lot of emphasis on public education but the education is just on how to protect corporations' commercial rights, rather than on the basic principles of why copyright exists in the first place."
Mr Cheng said champions of users' and consumers' rights had not emerged among the younger generation because the technology was still new, and because they felt the government wouldn't listen.
"Look at how much effort the education institutes put in to get their views across in the copyright amendment bill. It seems you need to be in a big organisation [to get your voice heard].
"It isn't so much the sense that one can be lucky in ignoring [the law] and not get caught, but rather a sense of futility," he said.
Government officials have said they are keeping an open mind on all proposals at the moment, and the proposals are still far from becoming bills. The government will host public forums and meetings with interest groups before drafting the bill, and new proposals will be taken to the Legislative Council.
"I don't think it will be this year. Hopefully it will be next year," Ms Leung said. "From the copyright holder's point of view it's too late already."
At a Legislative Council panel meeting last week, lawmakers expressed reservations about a broad criminal prohibition against downloading, although some supported a narrow liability, such as only on downloading for commercial purposes or for "significant" infringements.
Democratic Alliance for the Betterment and Progress of Hong Kong's Wong Ting-kwong admitted it would be difficult to strike the correct balance. "At this stage, looking at the document, it seems like there isn't a solution that would satisfy all parties," he said.
