Online copyright claims rejected
April 24, 2012
The Commerce & Economic Development Bureau has refuted reports the Copyright (Amendment) Bill 2011 will make all online sharing activities illegal.
In proposing a technology-neutral communication right in the bill, the Government has made it clear in the new section 28A(5) that a person does not communicate a work to the public if he does not determine the content of the communication.
It said that if an Internet user is not the uploader of certain online material, and he merely shares a hyperlink which grants access to such material on a social networking platform, he is not communicating the material to the public.
It said a hyperlink is not a copyright work, therefore, any claim the bill prohibits all online sharing activities is unfounded.
The bill does not contain any provision targeting derivative works. A derivative work that does not constitute copyright infringement under the existing Copyright Ordinance today will remain so after passage of the bill, it said, adding the bill will not hinder the freedom of expression online.
Regarding the suggestion the bill should provide an exception for derivative works, the bureau said that introducing a copyright exception for derivative works is liable to change significantly the existing balance of interests between copyright owners and users under the Copyright Ordinance.
While the case for introducing such an exception has been the subject of policy debate in several overseas jurisdictions, a commonly accepted legal treatment for derivative works is yet to emerge. It said it is not prudent to provide such an exception in Hong Kong outright without prior public consultation.
After the passage of the bill, the Government will study the proposed exception for derivative works, including consultations with stakeholders, taking into account the experience of other common law jurisdictions in handling such copyright exception, the bureau said, adding the Government is committed to promoting creativity and copyright respect.
