On 8 July 2024, the Hong Kong government launched a two-month public consultation on potential revisions to the Copyright Ordinance (Cap. 528) in view of the rapid developments in artificial intelligence (“AI”), especially generative AI. The 52-page consultation paper titled “Copyright and Artificial Intelligence” (the “Paper”) addresses the following issues relating to generative AI:

  • How is the copyright of AI-generated works protected under the existing legal framework?
  • How is copyright infringement liability for AI-generated works determined?
  • Is it necessary to adopt a text and data mining exception (“Proposed TDM Exception”) for the use of copyright-protected works in training AI systems?
  • Other issues not directly relevant to copyright law, such as deepfakes and transparency.

The consultation Paper opines that the existing HK copyright law framework is well-equipped to navigate the new generative AI landscape on the following basis:

  • The Copyright Ordinance affords sufficient protection to both AI-generated literary, dramatic, musical and artistic (“LDMA”) works and AI-generated non-LDMA works.
  • The legal principles and rules contained in the Copyright Ordinance are capable of determining whether there is copyright infringement resulting from the creation and use of AI-generated works.
  • In respect of other peripheral issues, such as deepfakes and transparency, the government said it will continue to develop practical guidance (in addition to existing guidelines) to identify and handle any potential risks and ethical concerns associated therewith.

The Paper goes on to discuss the arguments both for and against creating the Proposed TDM Exception. Some of the arguments in favor of creating the Proposed TDM Exception include that it promotes AI development and economic growth, facilitates computer science research, maintains HK’s overall competitiveness and benefits society, provides legal certainty to users, and reasonably balances the interests of copyright owners and users. On the other hand, introducing the Proposed TDM Exception could also adversely impact the rights of copyright owners, interrupt current market practices, and may not be sustainable in view of the fast moving nature of the technology. The Paper finally arrives at the conclusion that the Proposed TDM Exception should be introduced along with appropriate safeguards to protect copyright owners’ interests. Further, the Paper suggests taking an inclusive approach – the exception should cover a wide range of TDM activities, not restricted just to non-commercial research and study.

Although the Proposed TDM Exception is still being discussed at this early consultation stage, it will be interesting to see how the exception will be designed to stay in line with the overarching policy objectives mentioned in the Paper. Overall, the Paper demonstrates the HK government’s determination to regulate this emerging field whilst having regard to its potential, significant beneficial socio-economic impact.