After eight years of preparation and rounds of consultation, the Copyright (Amendment) Bill 2014 (2014 Bill) was finally gazetted by the Hong Kong Government for legislative consideration on 13 June 2014. It was introduced for First and Second Readings before the Legislative Council on 18 June 2014.

The 2014 Bill aims to enhance copyright protection and balance the interests of copyright owners, users and online service providers (OSP) amid the developments in the digital environment. It also addresses the sensitive issue of parody by providing exemptions for parody makers.

Technology-neutral exclusive right for copyright owners

The 2014 Bill introduces a new exclusive right for copyright owners to communicate their works through any mode of electronic transmission. The Government expects this to facilitate the development of digital content and enhance the protection against online piracy.

Criminal liability clarified

Distribution and communication of copyright works will amount to criminal offences if they affect the copyright owner prejudicially. In assessing what amounts to prejudice to copyright owners, the 2014 Bill proposes that the court may consider all the circumstances of the case and, in particular, the economic prejudice caused to the copyright owner as a result of the distribution and communication, having regard to whether the infringing copy amounts to a substitution for the work. The 2014 Bill highlights the factor of economic prejudice, and drops the phrase “more than trivial economic prejudice” that was adopted previously in the unsuccessful Copyright (Amendment) Bill 2011.

Broader fair dealing exceptions for users

The 2014 Bill will expand the scope of exceptions to exempt criminal and civil liabilities for the following purposes in appropriate circumstances:

  1. parody, satire, caricature and pastiche;
  2. commenting on current events;
  3. quotation;
  4. caching data (i.e. temporary reproduction of copyright materials) by OSPs;
  5. media shifting of sound recordings;
  6. giving educational instructions and facilitating daily operations of libraries, archives and museums;

Safe harbour provisions for OSPs

The 2014 Bill proposes to limit the liabilities of OSPs for copyright infringements occurring on their service platforms. This is subject to certain conditions, including the taking of reasonable steps to take down the offending work when being notified.

New factors for court’s assessment of additional damages

In civil cases, once copyright infringement has been established, the court may award additional damages in appropriate circumstances. The 2014 Bill proposes to add two more factors to which the Court may consider, namely:

  1. the unreasonable conduct of an infringer after having been informed of the infringement; and
  2. the likelihood of widespread circulation of infringing copies as a result of the infringement.