Floating Island

The JMSC hosted a seminar Thursday on Hong Kong’s copyright reform in the digital age. Peter K. Yu of Michigan State University College of Law gave a presentation, which was followed by comments from Charles Mok, Chairman of the Internet Society of Hong Kong. JMSC professor Doreen Weisenhaus moderated.

The focus of the seminar was the Hong Kong government’s ongoing consultation on “Copyright Protection in the Digital Environment,” which seeks to address the challenges to copyright holders brought about by the internet and new technologies. Professor Yu kicked things off with a selection of clips from YouTube: a Voltron episode, a spoof of Bush and Blair, and movie mashup called “Brokeback to the Future.” Although the mood while viewing these clips was lighthearted, Yu noted that there are critical issues of whether we should be able to sample copyrighted material to create transformative works.

Yu discussed four main issues from the copyright consultation documents: 1) criminal enforcement of copyright law; 2) safe harbour provisions for ISPs; 3) subpoenas; and, 4) statutory damages for copyright infringement. Below I’ve summarized his comments on these topics.

1) Criminal enforcement

Although criminal enforcement of copyright law is quite effective as a deterrent, it has a number of drawbacks that must be considered carefully. These include punishments that are disproportionate to the offenses committed, selective enforcement (leading to claims of unfair enforcement), and the potential to criminalize a large number of people for minor copyright infringements.

Copyright infringement is not like other types of property theft because an infringed copyright work can still be used by others. In addition, the boundaries of copyrights may be difficult to understand in the context of exception-granting doctrines such as fair use and first sale, and the actual harm to copyright holders may be difficult to determine, since in practice many copyright infringers are unable or unwilling to pay for the use of copyrighted material.

These challenges make criminal enforcement difficult, so it may be best to avoid it except in cases where there is a clear economic benefit to the infringers. There may also need to be a willfulness requirement for infringement, as exists in the United States and other countries, with the burden on the copyright holder to show a lack of good faith by the infringer.

2) ISP safe harbour

Yu took the US Copyright Act Section 512 (known as the Digital Millenium Copyright Act) as a point of reference for a potential ISP safe harbor in Hong Kong. Safe harbor provisions should be encouraged because ISPs and their deep pockets are natural targets for copyright holders, and we should not sacrifice the development of the internet and technology investment to protect copyright holders. It is also unfair to prosecute ISPs for copyright infringement if they have no control over the material in their systems, and copyright holders should share liability for their own failure to sufficiently protect their interests.

However, safe harbor provisions may encourage ISPs to take down material that is not infringing and may be subject to abuse by people or companies that seek to silence their critics or competitors. In addition, copyright holders may be overzealous in demanding that ISPs take down material that they have mistakenly identified as infringing.

Yu recommends several safeguards to prevent such abuses: 1) a put-back provision to counteract the effects of improper takedown requests; 2) a provision granting the right to sue for misrepresentations (which should trump prior waivers of the right in the ISP user agreements); and 3) some sort of fast-track remedy procedure. Takedowns should also be noted in public records, and Hong Kong’s law faculties should be encouraged to establish legal clinics to deal with copyright issues.

3) Subpoenas

Under section 512(h) of the US Copyright Act, there is a streamlined provision for copyright holders to obtain subpoenas to force ISPs to provide user information. This procedure is much less costly than filing a lawsuit, but it implicates privacy concerns because anyone could be a copyright holder, and hence anyone could request a subpoena under this provision. The subpoena power also raises concerns over free speech and the potential for chilling effects and could create opportunities for blackmailers and stalkers.

4) Statutory damages

According to Yu, statutory damages are important because they lead to more serious lawsuit threats – “threats on steroids”—which could encourage large but unwarranted settlements. Statutory damages are especially problematic with regard to private copying by individuals where there is no commercial use.

In summation, Yu mentioned a variety of alternatives to copyright reform, including mass licensing (think iTunes), compulsory licensing (by added levies on hardware), voluntary licensing, voluntary contributions, technological protections (i.e. digital rights management), online arbitration, and alternative models (such as patronage or sales of ancillary products). Reform is only one of eight proposals, said Yu, who closed with a video clip of a young American student who was arrested for online downloading. Is this the kind of copyright regime, the kind of society we want in the future?, asked Yu.

Mok followed up with a series of criticisms towards the Hong Kong government’s handling of copyright reform and consultation. Mok said that the government should list all of the options for reform, including Creative Commons, and that it should accept that the nature of copyright has changed a great deal along with user behavior. Contrary to the government’s position, too much intellectual property protection will have a negative impact on creative industries, said Mok.

Weisenhaus closed the seminar with a reminder for all of us to participate in the public consultation process by submitting our view to the government by April 30. You may submit your views online to the Commerce, Industry and Technology Bureau at co_review@citb.gov.hk