Will sharing, or even viewing, modified or adapted pictures attract legal liability?
The new Section 28A(5) under the Amendment Bill specifies that “a person does not communicate a work to the public if the person does not determine the content of the communication”. Therefore, simply sharing a hyperlink, a Facebook post, or another person’s tweet will not constitute a “communication offence”. However, if a person downloads a video or a picture and then upload the same for sharing, it may be considered as distribution of an infringing copy and hence attract civil or criminal liability. Mere viewing (without distributing or communicating) is not an infringing act.
Can the Government bypass the copyright owner or author and directly prosecute infringers or persons who engage in secondary creation?
The decision whether to prosecute lies with the Department of Justice. Generally speaking, it is difficult for the Government to bypass the copyright owner to prosecute copyright offences because it is not easy to establish a prima facie case without the assistance of the copyright owner.
Under the Amendment Bill, will adaptation of videos, songs or pictures attract criminal liability?
Under the Amendment Bill, if the adaptation of videos, songs or pictures falls within the scope of “parody”, “satire”, “pastiche”, “caricature”, “quotation” or “reporting or commenting on current events”, it is covered by copyright exceptions. If the work is not covered by any copyright exception and amounts to “prejudicial distribution or communication” and “a substitution for the original work”, it may attract criminal liability.
Under the existing legislation, is it unlawful to post adapted pictures or songs; image captures; rewritten lyrics; or earnest performance of copyrighted songs (i.e. without any parodic elements) on the internet?
The above act may be considered infringement under the existing legislation, for which the copyright owner can pursue civil action. If the act of infringement amounts to “prejudicial distribution”, the person who distributes such work may also face criminal prosecution.
Under the Amendment Bill, would it be unlawful to post adapted pictures or songs; image captures; rewritten lyrics; or earnest performance of copyrighted songs (i.e. without any parodic elements) on the internet?
Under the Amendment Bill, if the work falls within the scope of “parody”, “satire”, “pastiche”, “caricature”, “quotation” or “reporting or commenting on current events”, it may be covered by the proposed copyright exceptions and exempt from civil and criminal liability.
Is it unlawful to publish “doujinshi” comics online for non-commercial purpose?
“Doujinshi” does not fall within any copyright exception, whether under the current legislation or the Amendment Bill. The copyright owner can pursue civil action for infringement. If the infringing material amounts to “prejudicial distribution” and a substitution for the original work, it may also attract criminal liability.
Is live-stream gameplay unlawful under the existing legislation and the Amendment Bill?
Under the current legislation, live-stream gameplay does not fall within the scope of statutory protection and therefore does not constitute infringement. The Amendment Bill introduces a new “communication right” which covers live-streaming. Live-stream gameplay does not fall within any copyright exception under the Amendment Bill and therefore the copyright owner can pursue civil action for infringement. If the infringement amounts to “prejudicial communication” and a substitution for the original work, it may attract criminal liability.
Will image capture constitute a copyright infringement?
Yes, so long as the image capture is unauthorised and does not fall within any copyright exception.
Could we still use image capture under the Amendment Bill?
Yes, you can use image capture under the exception of “quotation”. However, the extent of the quotation should not be more than that is required by the specific purpose for which it is used and the quotation should be accompanied by sufficient acknowledgement (e.g. source, title, name of the author etc.).
Would it be unlawful to quote copyright work without acknowledging the source?
Yes, except when the purpose of the quotation falls within any copyright exception such as “parody”, “satire”, “pastiche”, “caricature”, “quotation” or “reporting or commenting on current events”. In such cases acknowledgement may not be necessary.
What are the benefits, to secondary creation, of the “safe harbour” provisions under the Amendment Bill ?
Users are given the opportunity to file counter-notices with online service providers explaining the reasons why their works should not be taken down. The provisions also introduce both civil and criminal sanctions for complainants who make vexatious removal requests, which will deter malicious requests for removal of online materials and prevent abuses of this removal mechanism (thus protecting freedom of expression in the form of secondary creation).
If the content of the Amendment Bill is not as bad as some people fear, why are we opposing the Bill?
Firstly, the Government has not clarified whether the offence of “access to computer with criminal or dishonest intent” is applicable to copyright matters. Secondly, there is no “contract override provision” similar to the one contained in the copyright legislation in the United Kingdom with regard to civil liability exceptions. Under the Amendment Bill, even if a work of secondary creation falls within any of the statutory copyright exceptions, so long as the copyright owner specifies in the contract that the statutory exceptions do not apply to the copyright material, the work will still constitute an infringement for which the copyright owner can take civil action. Thus, the Amendment Bill does not offer sufficient protection for secondary creation rights. Thirdly, at a time when many jurisdictions (including neighbouring countries in Asia,) have already adopted a broad exception of “fair use”, Hong Kong’s copyright law should be updated to keep abreast with the times and break away from the old model of exhaustively itemised exceptions. The creativity of Hong Kong people is boundless and we deserve a better piece of copyright legislation.
