Draft Copyright (Suspension of Amendments) Bill 2001



 

Draft Copyright (Suspension of Amendments) Bill 2001

  1. The draft suspension amendments, as well as the original amendments,
    have ramifications which are immensely far-reaching and serious.
  2. It must be remembered that the Copyright Ordinance, before the
    controversial amendments which recently commenced on 1st
    April, 2001, was enacted after a long period of consultation and
    consideration by the Law Reform Commission and its Copyright Sub-committee
    which after having studied the matter from 1987-1993, did not recommend
    criminalization of possession of infringing copies other than for
    purposes of trade or business with a view to committing an infringing
    act. In fact, paragraphs19.29 and 19.33 of the Law Reform Commission
    Report of the Law Relating to Copyright (Topic 22) rejected criminalization
    of possession for a purpose merely incidental to the nature of the
    business.

    However, the recent amendments extended criminal liability with
    grievous and draconian consequences which do not exist in any other
    jurisdiction.

  3. Now that the controversial amendments have to be reconsidered,
    it will be necessary to consider a number of fundamental issues
    including the following:

a. whether the extension of criminal liability is
justified or appropriate;

b. If so,

  1. whether there should be provisions to balance or to counter the
    possible abuse of monopoly and dominant position such as the de-regulation
    of parallel imports in both civil and criminal contexts;
  2. whether there need to be competition provisions including unfair
    trade practices provisions; and
  3. whether there should be exceptions (which must be specific and
    clear) to criminal liability in view of the uncertain ambit of the
    defences under the civil provisions such as fair dealing, education
    et cetera.

It would be therefore most unwise and unrealistic
to approach the matter in a piecemeal and haphazard manner. A full
and proper public consultation should be carried out. The Bar shall
be happy to provide detailed views.

3. In view of the above considerations, the provisions
extending criminal liability by the recent amendments should be suspended
pending full and proper re-consideration. The Bar believes this is
the right way forward.

4. If, contrary to our view, a limited suspension
is insisted upon, the draft bill still suffers from fundamental problems:

 

    1. The approach is wrong. The approach presently adopted is dangerous
      as it may not cover all intended exempted categories. The better
      approach would be to suspend the extension of criminal liability
      save in respect of specific categories of matters which are clearly
      defined and were the original subject of concern.
    2. The drafting of the bill is fundamentally flawed. The Bar is
      most concerned that insufficient attention has been paid to basic
      copyright concepts. For instance:

      1. A "printed version of a computer program" (clause 2(2)(b))
        is not a copyright work at all. Furthermore, the express exclusion
        of "a copyright work in any form other than in printed form"
        defeats the very purpose of the draft bill itself. This is so
        because most copyright works are not in printed form. For example,
        newspaper articles (literary works) are almost invariably written
        in manuscript or in electronic form. Digital photographs and
        hand and computer-generated drawings (artistic works) are not
        in printed form. Indeed, very few copyright works are in printed
        form.
      2. The phrase "a film commonly known as a movie or television
        drama" (clause 2(3)(a)) is of uncertain scope and meaning and
        the words "movie" and "television drama" are not defined. Additionally,
        the Bar does not understand why artificial distinctions between
        different types of film are introduced.

5. The Bar therefore takes the view that the provisions
extending criminal liability in the Intellectual Property (Miscellaneous
Amendments) Ordinance should be suspended pending mature re-consideration.

 

Dated 25 April 2001

Hong Kong Bar Association