In 2014.4.11 Ottawa-HKU Conference

1. Charles Mok
Legislative Councillor
(Information Technology)

2. 2
Image credit: lifehacker
Freedom of
expression
Intellectual
property rights
Access to
information
and
knowledge

3. 3

4. DERIVATIVE WORKS: EXAMPLE OF
TRANSFORMATIVE USE
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Altered pictures/videos Image/video capture
Streaming of video game playing

5. PARODY AND CURRENT AFFAIRS
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Cartoon to promote rally against national
education curriculum 2012
Chief Executive election 2012

6. INTELLECTUAL PROPERTY IN DIGITAL
ENVIRONMENT
• HK’s talk of updating Copyright
Ordinance since 2006 for a
technology-neutral
communication right
• Copyright (Amendment) Bill
2011 stalled
• Netizens worried over parody,
asked for exemption - “more
than trivial economic prejudice”
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“NO to Internet version of (Basic Law) Article 23”
Image credit: Neo Democrats

7. 2013 CONSULTATION:
TREATMENT OF PARODY UNDER THE
COPYRIGHT REGIME
3 options for the treatment of parody, satire, caricature and
pastiche
• Option 1 Clarifying existing provisions on criminal
offences
• Option 2 Introducing a criminal exemption
• Option 3 Introducing a fair dealing exception
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8. NETIZENS ARE SUSPICIOUS
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Traps set to kill derivative works Political tool to annihilate the online media

9. THE DEBATE
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Copyright
owners
Netizens
• Protect interests of artists by
existing regime is enough
• Exemptions might undermine
copyright protection
• Call for retaining civil/criminal
liabilities
• Firmly reject UGC (non-compliant
with TRIPS Agreement)
• All types of derivatives works
should be given exemptions from
criminal and civil liabilities
• Uphold freedom of expression and
spur creativity
• Advocate the concept of User
Generated Content (UGC) based on
Canadian model
Middle ground?
Focus on large scale
copyright infringement

10. GOV’T PROPOSAL AFTER CONSULTATION
“To balance different interests of stakeholders in society,
public interest is widely accepted as the overriding
justification of exceptions under our copyright regime”
“Broad principles of balancing interests and
international obligations must be translated into
legislative language in our copyright regime in the local
context.”
“…inclusion of an element of imitation or incorporation
of certain elements of an underlying copyright work,
creating comic or critical effects in general.”
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Source: The Administration’s paper to the
Legislative Council Panel on Commerce and
Industry, 18 March 2014
(CB(1)1072/13-14(05))

11. ENLARGE THE CURRENT SCOPE
OF EXEMPTION
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Some examples of activities involving copyrighted works:
• Mashups/remixes/sampling/altered pictures/videos
in response to current and political events
• Image/video capture or text excerpts used on blogs
and social media
• Video game playing clips
• Homemade videos

12. ACTIVITIES DEEMED OUTSIDE OF
SCOPE FOR EXEMPTION
“Earnest performance of copyright works” (song singing)
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Image source: Facebook of street
singing group ‘The Flame’

13. FURTHER PROPOSALS
• Refinement to Option 1 (emphasis on ‘substitution
for the original work’ rather than more than trivial
economic prejudice)
• Rejected exemptions for UGC: hard to define,
unnecessary with refined option 1
• ‘Safe harbour’: limit ISPs’ liability and deal with trivial
infringement cases through ‘notice and take down’
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14. MORE QUESTIONS?
• Definition of behaviour for ‘special treatment’ – vague?
• Works created ‘in response to current events’ can be
exempted: where is the line drawn?
• Can we rely on copyright holders not suing creators of
derivative works? Is protection enough?
• Fair dealing: how will ‘transformativeness’ be interpreted?
• Would ‘safe harbour’ be abused to increase burden on
ISPs to the point where they self-censor user contents to
avoid legal liability?
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15. PUBLIC DISCUSSION NEEDED
• Can our copyright laws keep up-to-date with
technology advancement?
• More collaborative ways to create and share digital
content
• Besides parody, other common practices in digital
world is not protected and ambiguous in the laws
• Generate more debate towards more free and open
copyright regime
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16. LOOKING AHEAD
• How to expand the public domain and reflect public
interest in copyright ordinance
• Promote users’ rights beyond open licensing
• Reform to remove ‘red tape’ inhibiting innovation and
economic development
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17. Charles Mok
Legislative Councillor
(Information Technology)
Email: charles@charlesmok.hk
Website: www.charlesmok.hk
Facebook: Charles Mok 2012
Twitter: @charlesmok
Weibo: charlespmok 17