15 Feb 2016 Q&A: What if the copyright amendment bill is passed?
The 2014 copyright amendment bill is currently known for legislative deadlock. The government and civil society groups adopt different interpretations of the bill due to their divergent stances. They circulate the so called “lazyman bag” of different versions on the Internet, which have confused the general public. After a comparison of the “bags”, a study on the bill, and consultations with scholars, HKTR prepares an independent Q&A for you.
Q: Is it illegal to view adapted works online?
A: No matter before or after the amendment, anyone who simply listen to music or view pictures online does not attract legal liability, unless he/she download a copyright work and then upload it for sharing.
Q: Is it illegal to share a hyperlink online?
A: Under the existing Copyright Ordinance, there is no provision prescribing online sharing practice.
Under the amendment, “a person does not communicate a work to the public if the person does not determine the content of the communication”(28A(5)&(6)). Therefore, the government says someone who simply shares a hyperlink will not attract legal liability.
However, if a person designs a “links aggregating site” to facilitate infringing communication of copyright works for profit, he/she is likely to attract civil and criminal liability(LC Paper No. CB(4)199/15-16).
Meanwhile, Professor Peter Yu, a copyright expert says the amendment is not so clearly prescribed. For example, if someone share a link to an unauthorised work with his/her comment, it would be unclear whether he/she is considered to “determine the content of the communication” which holds him/her liable. There will be no answer until the court make a judgement on a real case in the future.
Q: Is it illegal to capture image of a film or TV program and share it online?
A: No matter before or after the amendment, making a photograph of any substantial part of a film or TV program without acknowledgement may constitute infringement of copyright(23(4)).
However, under the existing legislation, capturing an image of a video work for the purpose of “criticism, review and news reporting” (fair dealing) with a “sufficient acknowledgement” is exempted from the liability (39(1)).
Under the amendment, more fair dealing exceptions will be included: “quotation” and “parody, satire, caricature and pastiche” (39A), and it is not necessary to be “with a sufficient acknowledgement if it is not reasonably practicable to do so”(39(6)). But how much acknowledgement is “sufficient” is a question now as the government and netizen groups have different interpretation of it.
Q: Is it illegal to make a adapted work (i.e. picture, music, video) and upload it online?
A: Under the existing legislation, fair dealing with a work for the purpose of “criticism, review and news reporting” are exceptions from copyright infringement (39).
Under the amendment, “quotation” and “parody, satire, caricature and pastiche” will be exceptions(39A) as well. Therefore, an online user will not be liable for simply creating and sharing a work adapted from another on the Internet.
However, no matter under the existing legislation or amendment bill, author the adapted work will be liable for the unauthorised adaptation for profit-making purpose and a the mean time affect the potential market or value of the original work. If the adaptation goes to an extent as to prejudice the copyright owner, an offence will be constituted(118).
Q: Is it illegal to make a cover version or adapted song and share it online?
A: No matter under the existing legislation or amendment, if an unauthorised performance work prejudice the copyright owner, e.g., a substitution for the original work, it may constitute a copyright infringement and offence (27&118). But it also depends on the attitude of the copyright owner. For instance, the Composers and Authors Society of Hong Kong has authorised YouTube to distribute its users’ cover versions.
Under the amendment, if a person make a cover version for the purpose of “criticism, review, quotation, and reporting and commenting on current events” or “parody, satire, caricature and pastiche”, he/she does not attract legal liability.
Q: Is it illegal to stream video game playing?
A: No matter under the existing legislation or amendment, if a game playing is streamed with comments, it will be a fair dealing exception from legal liability.
For a simple live streaming, there is no provision applicable to the situation under the existing legislation, but it will amount to copyright infringement under the amendment. However, the video game companies as of now welcome the practice for marketing concern, though it is unpredictable whether they move to file a lawsuit in the future when the business model changes.
Q:Is it illegal to share videos featuring parties or weddings which include background music or other copyrighted works on site?
A: No matter under the existing legislation or amendment, it is not an infringement if music and a song is an “incidental inclusion” in a video (40).
Under the amendment, exceptions of “criticism, review, quotation, and reporting and commenting on current events” or “parody, satire, caricature and pastiche” could be invoked if applicable.
Q: Is an online service provider liable for its users’ illegal sharing of a copyrighted work through the service?
A: No relevant provision under the existing legislation.
Under the amendment, a new “safe harbour” mechanism will be introduced. An online service providers will not be liable for infringement simply caused by its users. However, if the service provider benefit from the infringing works, e.g., more revenue for advertisement, it will attract legal liability.
Q: Will the newly introduced “safe harbour” be abused as it provide a legal mechanism to remove online content?
A: “Safe harbour” provide a mechanism for copyright owners to send notices to online service providers in order to remove unauthorised works. However, the bill also prescribed that anyone make a false statement in a notice will attract civil and criminal liability, which is subject to imprisonment for a maximum of 2 years.
Q: Why is the amendment bill still controversial?
A: The amendment bill is aimed at better protection for three groups: for copyright owners, the newly introduced “communication right” ensures copyright protection in the digital environment；for netizens, more fair dealing exceptions from legal liability, e.g., “parody, satire, caricature and pastiche” are included; for internet service providers, they will be protected in the “safe harbour”.
However, people are still debating over whether a larger scope of “fair dealing” exceptions is enough to protect netizens. Advocacy groups ask for a more flexible “fair use” approach or a copyright exception to exclude user generated content (UGC) from civil and criminal liability. The government insists the bill should be passed before a review in the future, whereas netizen groups require the loosest criteria this time.