RCCL Working Paper Series
中國法與比較法研究中心研究論文系列
When Copyrights Meet Human Rights: “Cyberspace Article 23”
and Hong Kong’s Copyright Protection in the Digital Era
Guan Wenwei
Assistant Professor
City University of Hong Kong School of Law
RCCL Working Paper No 5
(June 2012)
Centre for Chinese and Comparative Law (RCCL)
City University of Hong Kong School of Law
Tat Chee Avenue 83, Kowloon Tong, Kowloon, Hong Kong
When Copyrights Meet Human Rights: “Cyberspace Article 23”
and Hong Kong’s Copyright Protection in the Digital Era
Wenwei GUAN*
Table of Contents
Abstract ................................................................................................................................ i
1.
Introduction ............................................................................................................... 1
2.
Hong Kong’s Copyright Bill 2011 and Internet Freedom ........................................ 2
2.1
The Copyright Ordinance 1997 and Amendments for the Analogue Era ............. 2
2.2
The Copyright (Amendment) Bill 2011 for the Digital Era .................................. 4
2.3
Copyrights vs. Free Speech in Hong Kong and Beyond ....................................... 6
3.
4.
*
When Copyrights Meet Human Rights ..................................................................... 8
3.1
Copyrights as Private Rights and Negative Rights ............................................... 8
3.2
Copyrights vs. Freedom of Speech ..................................................................... 11
3.3
Hong Kong Model: “One Regime Two Systems” in the Digital Era.................. 14
Concluding Remarks ............................................................................................... 16
Assistant Professor, School of Law, City University of Hong Kong.
Abstract
Hong Kong’s current Copyright Bill has been criticized as a “Cyberspace Article 23”
due to the fear that it would hamper freedom of speech, as its introduction of an all-embracing
and exclusive right of communication to copyright holders leaves no room for satire or parody of
copyright works. By reference to domestic and international jurisprudence, this paper indicates
that the seeming conflict between copyright and freedom of speech is misleading as copyright’s
protection of the expression of ideas forms an essential part of freedom of speech. Contrary to
the common perception, the paper argues that Hong Kong’s model is very unique not only in the
Bill’s accommodation to various individual rights but also in its “one regime two systems”
framework that combines statutory law with a non-statutory Code of Practice to define OSPs’
liability, which provides good insights for other jurisdictions for balancing conflicting interests
in adapting copyright protection to the digital era.
i
1. Introduction
In response to challenges from advances in technology and the development of
infrastructure, the two 1996 World Intellectual Property Organization (WIPO) “Internet Treaties”
signified the beginning of the digital era of modern copyright law.1 Since then, the US’ 1998
Digital Millennium Copyright Act, the EU’s 2001 Copyright Directive, and the UK’s 2003
Copyright and Related Rights Regulations have shown various efforts to update copyright
protection to the digital era. Hong Kong’s effort to adapt the current analogue copyright law—
the 1997 Copyright Ordinance (Cap 528)—to the digital era started with a public consultation in
2006.2
The Copyright (Amendment) Bill 2011 is Hong Kong’s most recent effort to adapt
copyright protection to the digital environment. Proposed by the Hong Kong Government after
building on public consultation and then further public engagement since 2006, the Bill was
introduced to the Hong Kong Legislative Council (LegCo) in May 2012. Some pan-democratic
LegCo members boycotted the Bill for the fear that the criminalization of unauthorized
communication of copyright works, which might cover works of satire or parody, would
jeopardize the freedom of speech. The Bill was generally categorized as “Cyberspace Article 23”
in reference to the attempt to introduce anti-subversion legislation implementing Article 23 of
the Hong Kong Basic Law that triggered massive demonstrations in 2003.3 The issue’s heated
debates have traveled beyond Hong Kong and gained much international exposure.4 The issue in
part reflects the kind of political controversy that also surrounded the recent election of the Chief
Executive of the Hong Kong Government in early 2012. However, the issue goes beyond the
political debate and hits a fundamental legal issue: when intellectual property rights collide with
fundamental human rights, where is the boundary of the dynamics between individuals and the
government?
By reference to recent similar situations in other jurisdictions, such as the US and the EU,
this paper offers a critical analysis of the dynamics between copyright protection and freedom of
speech in the context of Hong Kong’s current copyright amendment and its jurisprudential
implications. In the next chapter, Section II, the paper offers a brief examination of the
1
The 1996 WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT)
together are called the “Internet Treaties.”
2
The Commerce and Economic Development Bureau of Hong Kong Government (CEDB Hong Kong),
“Copyright Protection in the Digital Environment,” 2006 (the 2006 Public Consultation Report thereafter). The
Report is available through the Hong Kong Intellectual Property Department (HKIPD) official website at:
http://www.ipd.gov.hk/eng/intellectual_property/copyright/digital_environment.htm (accessed June 18th, 2012).
3
Under the Article 23 of the Hong Kong Basic Law, the Hong Kong Government “shall enact laws on its
own to prohibit any act of treason, secession, sedition, [or] subversion” against the Central Government. The Hong
Kong Government initiated the legislation process in 2002, which triggered significant controversy and division in
Hong Kong. Fearing that Article 23 legislation might erode freedom of speech, massive street demonstrations
erupted in 2003. The Bill was then withdrawn and postponed indefinitely. For the political controversy of the issue,
see Wong Yiu-chung, “Super Paradox” or “Leninist Integration”: The Politics of Legislating Article 23 of Hong
Kong’s Basic Law, 30(2) Asian Perspective (2006), pp. 65-95.
4
This controversy of “Internet Freedom” was noted in the Human Rights Report by the U.S. Bureau of
Democracy, Human Rights and Labor (USDRL) that Hong Kong’s activists complained that the Copyright Bill
“prohibiting unauthorized use of copyright material in any medium without permission would threaten freedom of
speech,” and without fair-use exception, “would negatively affect works of satire or parody on the Internet.” See
USDRL, 2011: Country Report on Human Rights Practices in China. See also, AFP Report, “Hong Kong Artists
Cry Foul over Copyright Bill,” May 20th, 2012. Available online at: <http://newsinfo.inquirer.net/196747/hongkong-artists-cry-foul-over-copyright-bill> (accessed on June 6th, 2012).
1
development of Hong Kong’s copyright regime, the current debate around the seeming conflict
between copyright and the right to freedom of speech, and the nature of the conflict in Hong
Kong’s context. In Section III, by reference to practice in both domestic and international legal
frameworks, the paper examines the jurisprudential implications of intellectual property rights as
private rights when in tension with the right to freedom of speech as negative rights. The paper
reveals that the hidden and yet real claims of copyright protection and the advocates of freedom
of speech in the form of parody of copyright works both aim at creating limitations on
government authority, ultimately benefitting individual rights. Building on these findings, the
paper examines the unique response of the Copyright (Amendment) Bill 2011 as a whole to the
tension between copyright protection and the right to freedom of speech. The paper suggests that
the seeming conflict between copyright and freedom of speech depicted in Hong Kong’s
“Cyberspace Article 23” debates is misleading as copyright’s protection of expression of ideas
constitutes an indispensible part of the freedom of speech. The paper argues that Hong Kong’s
model is very unique not only in the Bill’s accommodation to various individual rights but also
in its “one regime two systems” framework that combines statutory law with a non-statutory
Code of Practice to define OSPs’ liability.
In Section IV, the paper concludes that Hong Kong’s effort to adapt copyright protection
for the digital era, the “one regime two systems” framework in particular, is actually the most
accommodating to individual rights compared to international practice, which provides good
insights for other jurisdictions.
2. Hong Kong’s Copyright Bill 2011 and Internet Freedom
2.1 The Copyright Ordinance 1997 and Amendments for the Analogue Era
Before 1997, copyright protection in Hong Kong operated under the United Kingdom
Copyright Act 1956 as extended to Hong Kong.5 Awaiting the return of the sovereignty of Hong
Kong to China in 1997, the Basic Law of Hong Kong contained language expecting the
localization of the Hong Kong Copyright Law.6 Hong Kong enacted the Copyright Ordinance
(Cap 528) in 1997 which was modeled on the UK’s Copyright, Designs and Patent Act 1988. 7
The Copyright Ordinance marked the beginning instead of the end of the localization of the
Hong Kong Copyright Law, as the Copyright Ordinance 1997 has been amended six times since
2000.
The six Amendments so far are various changes in response to the social and
technological development reflected in the tension between claims of copyright holders and
interests of the public in the analogue era. As the result of the public consultation in early 1999,
the first Amendment in 2000 criminalized the use of copyrights infringing products in business.8
5
Michael D Pendleton and Alice Lee, Intellectual Property: A Guide to the Law in Hong Kong (with
reference to the development in China), pp. 67-69 (Butterworths Asia, 2001). The application of the UK Copyright
Act 1956 was also supplemented by the Hong Kong enacted short legislation, the Copyright Ordinance (Cap 39)
promulgated in 1970.
6
Under Article 140 of the Hong Kong Basic Law, “[t]he Government of the Hong Kong Special
Administrative Region shall, on its own, formulate policies on culture and protect by law the achievements and the
lawful rights and interests of authors in their literary and artistic creation.”
7
Charn Wing Wan, “The Challenge of the Criminalization of Online Piracy in Hong Kong,” 3(10) Journal
of Intellectual Property Law & Practice (2008), p. 666.
8
This Amendment came into effect on April 1st, 2001.
2
However, this Amendment was widely criticized by the public for hampering information
dissemination in enterprises and the education sector, and was therefore readjusted by the second
amendment, the Copyright (Suspension of Amendments) Ordinance 2001 which narrowed the
criminalization scope to computer software, movies, television dramas and music recordings
only.9 The social tension revealed in these two early amendments of the Copyright Ordinance
can be seen as the analogue version of the tension between copyright holders and the public in
relation to copyright protection vs. free dissemination of information. The four subsequent
amendments, namely the 2003 Amendment’s removal of parallel importation restrictions on
computer software, the 2004 Amendment’s introduction of “copyshop offences”, and the
clarification of the civil and criminal liabilities of end-user piracy in the 2007 and 2009
Amendments, are all various adjustments of copyright law for the analogue era.
The current Copyright Ordinance of course offers copyright protection in the digital
environment too. The Chan Nai Ming case, for example, prosecuted the defendant’s attempt to
distribute infringing copies of three movies through BitTorrent under s 118(1)(f), now s 118(1)(g)
of the Copyright Ordinance (Cap 528), which states that unauthorized distribution of an
infringing copy of the work otherwise than for the purpose of trade or business—to such an
extent as to affect prejudicially the copyright owner—is committing an offence.10 However, the
Ordinance is generally considered as a copyright law of the analogue era that, with the rapid
development of information technology, does not fit well into the digital environment.11
As “analogue copyright laws,” the Copyright Ordinance 1997 and its six amendments
reveal the tension of IPRs protection for rights holders and interests of general social public. The
2001 Copyright (Suspension of Amendments) Ordinance that limited the 2000 Amendment’s
criminalization of copyright infringement (due to strong public criticism) well reflects this
tension. Some research indicates that the private-public tension reveals itself through other ways
at well. In his examination of the implementation of WIPO Copyright Treaty 1996’s anticircumvention and rights management information (RMI) protection provisions in Hong Kong
and Australia and its impacts on the privacy of accessing digital works, Greenleaf reveals an
unwelcome picture of the property-privacy dynamics.12 Greenleaf argues that privacy in both
places has been unduly prejudiced in favor of property and suggests recognizing privacy interests
as part of copyright’s public domain to “counter the copyright maximalism which seeks to make
private property interests predominate over all other interests.”13 Other early research on Hong
Kong’s Copyright Law reform also revealed an imbalance between the overprotection of
copyright holder’s interests against the interests of the public. 14 Pun argues that Hong Kong’s
current Copyright Ordinance “is overprotective of the copyright owners” to the disadvantage of
9
General information about these two Copyright Ordinance amendments and other four amendments
discussed in this section is available through the official WebPages of the Intellectual Property Department of Hong
Kong at: http://www.ipd.gov.hk/eng/copyright.htm.
10
Chan Nai Ming v HKSAR [2007] 2 HKLRD 489, [2007] 3 HKC 255, CFA. The case is commonly called
the “Big Crook” case.
11
C. W. Wan, op. cit., 667.
12
Graham Greenleaf, “IP, Phone Home: Privacy as Part of Copyright’s Digital Commons in Hong Kong
and Australian Law,” in Lawrence Lessig, Hochelaga Lectures 2002: the Innovation Commons (Sweet & Maxwell
Asia, 2003), pp. 12-67.
13
Ibid., p. 67.
14
K. H. Pun, “Reform of Copyright Law in Hong Kong: Time to Redraw the Balance,” 32(1) Hong Kong
Law Journal (2002), pp. 83-102.
3
education and the software industry as the users of the copyright works and the imbalance should
be readjusted.15
This private-public dynamics of copyright protection in the analogue era reveals itself
differently in the digital era. As we will see in the next section, the current debates around
“Cyberspace Article 23” in Hong Kong during legislative readings of the Copyright
(Amendment) Bill 2011 reveal a tension between property right claims and the right to freedom
of speech.
2.2 The Copyright (Amendment) Bill 2011 for the Digital Era
When Hong Kong signed the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT) in 2008, the analogue copyright era in Hong
Kong came to an end. The effort to adapt copyright protection to the digital environment,
however, started earlier than this. The Hong Kong Government initiated a public consultation on
“Copyright Protection in the Digital Environment” in 2006 and issued a “Preliminary Proposal
for Strengthening Copyright Protection in the Digital Environment” for further public
engagement in 2008.16 The final report of the public consultation, “Proposals for Strengthening
Copyright Protection in the Digital Environment” released in November 2009 lays down the
foundation of the Copyright (Amendment) Bill 2011. The Bill was gazetted on 3 June 2011 and a
LegCo Bills Committee was established to scrutinize the Bill at the House Committee Meeting
on 17 June 2011.
The purpose of the 2006 public consultation was to better adapt copyright protection to
the digital environment. The Consultation was initiated to review the efficacy of the current
copyright regime, to balance competing interests among right-holders, users, and industry, to
facilitate the sustainable development of creative industries via strengthening copyright
protection. 17 Key issues included the legal liability for unauthorized communication of copyright
works, introduction of an “all embracing right of communicating copyright works to the public”,
online service providers (OSPs) liability, and the mechanism facilitating civil actions against
Internet piracy.18 Perspective varies among different stakeholders. During this 2006 Consultation,
users were mostly concerned about the negative effect of the right of communication in
hampering the free flow of information and freedom of speech, and opposed criminalization
which might dampen Hong Kong’s development as an Internet service hub. Copyright holders,
however, suggested that the right of communication is consistent with the right in WIPO
Copyright Treaty to be underpinned by criminal sanctions, and criminalization as the most
effective piracy control would not affect legitimate use of the Internet.19
Building on the 2006 public consultation, the Government issued preliminary proposals
in 2008 for further public discussion which suggested recognizing the right of communication
through criminal sanctions against unauthorized online transmission through streaming
15
Ibid., p. 97.
These Reports by the CEDB Hong Kong and the CEDB’s final report “Proposals for Strengthening
Copyright Protection in the Digital Environment” discussed below, are available through HKIPD official website at:
http://www.ipd.gov.hk/eng/intellectual_property/copyright/digital_environment.htm (accessed June 18th, 2012).
17
CEDB Hong Kong, the 2006 Public Consultation Report, ii-iii.
18
Ibid.
19
CEDB Hong Kong, “Preliminary Proposals for Strengthening Copyright Protection in the Digital
Environment” (April 2008, thereafter the 2008 Preliminary Proposals), Annex A.
16
4
technology. 20 In the process of the 2008 public engagement, users supported a right of
communication without any criminal sanction attached, and suggested that criminalization of
streaming in non-commercial context would inhibit the free flow of information. Copyright
owners, on the other hand, suggested all-embracing, technology-neutral criminal sanctions
regardless of technology and commercial motivation to go beyond criminalizing streaming in a
non-business context. Online Service Providers (OSPs) suggested that legislation should be
technology neutral and mostly supported the right of communication with hesitation as to
imposing new criminal sanctions.21 In the Administration’s final proposals released in November
2009, the Government tried to maintain a balance between right holders, users, and the Internet
service sector. To avoid over-regulation limiting the development of Internet service sector, the
Report introduced a statutory limitation on OSPs liability and a copyright exception for
temporary reproduction of copyright works. To recognize the interests of the copyright users, the
Report introduced a media shifting exception for sound recordings which allowed users to copy
and change a copyright work between different formats or mediums.22
The most significant proposal, and probably the most controversial one, was to recognize
the copyright holders’ right of communicating their works through any mode of electronic
transmission and to criminalize unauthorized communication of copyright works. Under the
current Copyright Ordinance (Cap 528), copyright holders’ interests are protected only in certain
specific modes of transmitting a copyright work, including making it available to the public wire
or wirelessly, broadcasting it or including it in a cable programme service. 23 Under the Copyright
(Amendment) Bill 2011, new sections were added to provide right holders the exclusive right “to
communicate the work to the public” and states that “the communication of a work of any
description to the public is an act restricted by the copyright in the work.”24 This new exclusive
right of communicating copyright works to the public extends the reach of copyright protection
in the digital era. In this connection, current Copyright Ordinance’s references to “making
available to the public of copies of works”—in sections 8, 9, and 26 for example—are repealed
as works can be communicated to the public in different forms and no formal copy is needed any
more in the digital era.
To effectively protect this all-embracing right of communication, a new section was
added to the Copyright Ordinance to criminalize a person who communicates the work to the
public without the license of the right’s holder of the copyright work. According to the Bill, a
person commits an offence, if the person, without the license of the copyright owner,
communicates the work to the public for commercial purpose or communicates the work to the
public “to such an extent as to affect prejudicially the copyright owner” in a non-business
context.25
20
Ibid., the 2008 Preliminary Proposals.
CEDB Hong Kong, “Proposals for Strengthening Copyright Protection in the Digital Environment”
(November 2009, thereafter the 2009 Final Report), Annex B.
22
CEBD Hong Kong, the 2009 Final Report, 2-7.
23
See mainly “the acts restricted by copyright in a work”, section 22(1)(d) and section 22(1)(f), Copyright
Ordinance (Cap. 528).
24
Section 22(1)(fa) and section 28A, Copyright (Amendment) Bill 2011. The Bill is available via Hong
Kong Legislative Council (LegCo) website at: http://www.legco.gov.hk/yr10-11/english/bills/b201106033.pdf
(accessed 25 June 2012).
25
Newly added section 118(8B), Copyright (Amendment) Bill 2011.
21
5
2.3 Copyrights vs. Free Speech in Hong Kong and Beyond
The provision of this technology-neutral yet all-embracing and exclusive right of
communication to copyright holders and the criminalization of unauthorized communication of
copyright works to the public triggered intensive debates in Hong Kong. When the Bill came to
the LegCo reading, Hong Kong’s public criticism on the Copyright (Amendment) Bill 2011 had
very much concentrated on the Bill’s potential negative effects on freedom of speech. As no
explicit exemption for digital parody of copyright works was found in the amendment, the Bill is
considered, by the pan-democratic parties in particular, as against freedom of speech and
endangering the Internet freedom in Hong Kong. The pan-democratic activists and supporters
boycotted the reading of the Bill in the LegCo and denigrated the Bill as being “Cyberspace
Article 23”.26 The “Article 23” metaphor frames the issue as a conflict between property rights
and freedom of speech and highlights the general public’s distrust of the Hong Kong
Government. The Government’s recognition of copyright owners’ all-embracing right of
communication with certain criminal sanctions attached has been considered as eroding the
fundamental human rights of the public: the freedom of speech in the form of satire or parody of
copyright works.
To perceive copyright protection as something against fundamental human rights is
neither anything new nor anything local. To some extent, the seeming conflict between copyright
protection vs. freedom of speech in the Cyberspace Article 23 debates is the digital era version of
the social tension revealed in two early amendments of Hong Kong’s Copyright Ordinance. The
second amendment, the Copyright (Suspension of Amendments) Ordinance 2001, narrowed the
criminalization scope stipulated in the previous amendment to readjust the balance between
copyright protection for right-holders’ interests and information dissemination in enterprises and
the education sector.27 Nor is the seeming conflict anything local. In a very recent case decided
by the Court of Justice of European Union (ECJ), Scarlet Extended SA v. SABAM, the tension
between copyright and free speech came under the public spotlight again. 28 In this case, the
injunction sought by the copyright holders against businesses that refuse to install filtering
systems preventing P2P file-sharing for piracy control was found to be in breach of freedom to
information.29
Among others, the most common concern in the tension between copyright protection
and fundamental human rights is the conflict between copyright and free speech as revealed in
Hong Kong’s Cyberspace Article 23 debates. The US has long had this debate on the tension
between copyright and free speech back in the copyright analogue era. 30 The US Supreme
26
USDRL, 2011: Country Report on Human Rights Practices in China.
See supra discussion Section 2.1.
28
Enrico Bonadio and Mauro Santo, “ISPs cannot be ordered to adopt general and Preventive filtering
systems,” 7(4) Journal of Intellectual Property Law & Practice (2012), pp. 234-236.
29
Scarlet Extended SA v. SABAM, C-70/10, decided by the ECJ on 24 November 2011. The ECJ states
(para. 53) that:
[I]n adopting the injunction requiring the ISP to install the contested filtering system, the national court
concerned would not be respecting the requirement that a fair balance be struck between the right to
intellectual property, on the one hand, and the freedom to conduct business, the right to protection of
personal data and the freedom to receive or impart information, on the other.
30
See, e.g., Paul Goldstein, “Copyright and the First amendment,” 70 Columbia Law Review (1970), pp.
983-1057; Melville B. Nimmer, “Does Copyright Abridge the First Amendment Guarantees of Free Speech and
Press?” 17 UCLA Law Review (1970), pp. 1180-1204; Robert C. Denicola, “Copyright and Free Speech:
27
6
Court’s decisions in Harper & Row in 1985, in Eldred v. Ashcroft in 2003, and in Golan v.
Holder in 2011 are several landmark cases along the line of the debates on whether copyright
protection has eroded the free speech guarantee under the First Amendment of the US
Constitution. In Eldred v. Ashcroft for example, the US Supreme Court’s comprehensive
delineation of the compatible relationship between copyright and free speech was however much
debated.31
Like what happened in Hong Kong’s Cyberspace Article 23 debate, the tension between
copyright and free speech from the analogue era has regained its life in digital age. As early as
US’ DMCA for example, many concerns have been raised as to copyright online protection’s
negative effects on freedom of speech. 32 In the UK, the 2010 Digital Economy Act (DEA)
triggered similar concerns. The UK Parliament approved the DEA last year to authorize the
suspension of Internet service for those who repeatedly downloaded copyright materials illegally,
also stirring similar ripples in the public. 33 The recent Anti-Counterfeiting Trade Agreement
(ACTA) negotiated by the US and its partners triggers similar debates in Europe and the US.34
Aiming at establishing an international framework for controlling copyright and trademark
infringement, ACTA is a regional trade agreement signed by the proposers US and Japan, and
six other countries such as Australia and Canada in October 2011 and then by the EU in January
2012. According to ACTA, criminal and civil enforcement procedures “shall apply to
infringement of copyright or related rights over digital networks, which may include the
unlawful use of means of widespread distribution for infringing purposes.” 35 This was
interpreted by the public as a green light for cracking down on digital parody of copyright
materials, which might endanger the right to freedom of speech.36 In the US too, ACTA drew a
lot of social attention.37 Yu suggests that ACTA may undermine the promotion of human rights,
civil liberties, and in particular free speech and press throughout the world.38
Constitutional Limitations on the Protection of Expression,” 67 California Law Review (1979), pp. 283-316. See
also, Neil Weinstock Netanel, Copyright’s Paradox (NY: Oxford University Press, 2008).
31
See, e.g., Pamela Samuelson, “The Constitutional Law of Intellectual Property after Eldred v. Ashcroft,”
50 Journal of Copyright Society U.S.A. (2002-2003), pp. 547-579; Michael D. Birnhack, “Copyright Law and Free
Speech after Eldred v. Ashcroft,” 76 Southern California Law Review (2003), pp. 1275-1329; Craig W. Dallon,
“Original Intent and the Copyright Clause: Eldred v. Ashcroft Gets It Right,” 50 Saint Louis University Law Journal
(2005-2006), pp. 307-359; Paul Bender, “Copyright and the First Amendment after Eldred v. Ashcroft,” 30
Columbia Journal of Law & the Arts (2006-2007), pp. 349-354; David E. Shipley, “Congressional Authority over
Intellectual Property Policy after Eldred v. Ashcroft: Deference, empty limitations, and risks to the Public Domain,”
70 Albany Law Review (2006-2007), pp. 1255-1295; David S. Olson, “First Amendment Interests and Copyright
Accommodations,” 50 Boston College Law Review (2009), pp. 1393-1423.
32
See, e.g., Wendy Seltzer, “Free Speech Unmoored in Copyright’s Safe Harbor: Chilling Effects of the
DMCA on the First Amendment,” 24 Harvard Journal of Law & Technology (2010), pp. 171-232; Jennifer M.
Urban and Laura Quilter, “Efficient Process or ‘Chilling Effects’? Takedown Notices Under Section 512 of the
Digital Millennium Copyright Act, 22 Santa Clara Computer & High Technology Law Journal (2006), pp. 621-694.
33
See for example BBC News, “Email and web use ‘to be monitored’ under new laws”, April 1 st, 2012.
Available online: < http://www.bbc.co.uk/news/uk-politics-17576745> (accessed June 7th, 2012).
34
See for example, UK Guardian Report, “Act on ACTA now if you care about democracy and Free
Speech,” February 3rd, 2012. Available online: <http://www.guardian.co.uk/commentisfree/2012/feb/03/act-actademocracy-free-speech> (accessed on June 7th, 2012).
35
Article 27.2, Anti-Counterfeiting Trade Agreement.
36
See op. cit., UK Guardian Report.
37
See, e.g., Michael Geist, “ACTA’s State of Play: Looking Beyond Transparency,” 26 American
University International Law Review (2011), pp. 543-558; Annemarie Bridy, “ACTA and the Specter of Graduated
Response,” 26 American University International Law Review (2011), pp. 559-578; Alberto J. Cerda Silva,
“Enforcing Intellectual Property Rights by Diminishing Privacy: How the Anti-Counterfeiting Trade Agreement
7
The ACTA issue and the UK’s DEA issue again bring us to the question of the boundary
of the dynamics between individuals and the government when intellectual property rights meet
with human rights. The central issue of the debates around the copyright amendments for the
digital era in Hong Kong as well as in other jurisdictions has been where to set the boundary of
the dynamics between individuals and the Government when intellectual property rights meet
with human rights. This central issue brings us into the examination of the nature of copyrights
as private rights and the negative right nature of the fundamental human right of freedom of
speech.
3. When Copyrights Meet Human Rights
3.1 Copyrights as Private Rights and Negative Rights
At the center of Hong Kong’s “Cyberspace Article 23” issue is the seeming conflict
between right holders’ copyright interests and the freedom of speech of the public, which leads
us to the question of the nature of the copyright protection. As Hong Kong has long been a
member of the Berne Convention and was a founding member of the WTO’s Agreement of
Trade-Related Aspects of Intellectual Property Rights (TRIPS), this section looks to international
jurisprudence for insights into the issue in Hong Kong’s context.39
In general, international jurisprudence recognizes intellectual property rights (IPRs) as
private rights that hold a certain public dimension. On the one hand, under the TRIPS regime,
intellectual property rights (IPRs) are recognized as private rights.40 Being recognized as private
rights, “[a]cquisition procedures for substantive rights and civil enforcement procedures
generally have to be initiated by the right holder and not ex officio.”41 In China—Intellectual
Property Rights, the WTO Panel went through the provisions in relation to IPRs enforcement in
Part III of the TRIPS Agreement and concluded that “a condition that authority shall only be
available upon application or request” is “assumed” in the TRIPS Agreement.42 On the other
hand, in addition to the private right nature, the TRIPS Agreement also recognizes “the
underlying public policy objectives of national systems for the protection of intellectual property,
including developmental and technological objectives.”43 According to the TRIPS Agreement,
the objectives of IPRs protection are to promote technological innovation and technology
dissemination, as well as social and economic welfare.44 Under the TRIPS regime, IPRs can be
Jeopardizes the Right to Privacy,” 26 American University International Law Review (2011), pp. 601-643; Peter K.
Yu, “Six Secret (and Now Open) Fears of ACTA,” 64 SMU Law Review (2011), pp. 975-1094.
38
Peter Yu, op. cit., Six Secret Fears, p. 1050.
39
Hong Kong acceded to the Berne Convention in 1973 as British Colony. Upon the handover of the
sovereignty to China on 1st July 1997, Hong Kong continues to be the member of the Berne Convention as a Special
Administrative Region of China. In 1995, Hong Kong joined the WTO as a founding member in the capacity of an
independent customs territory under Articles 116 and 151 of the Hong Kong Basic Law.
40
Preamble, TRIPS Agreement.
41
China – Measures Affecting the Protection and Enforcement of Intellectual Property Rights (China –
Intellectual Property Rights), WTO Panel report (WT/DS362/R, 26 January 2009), para. 7.247.
42
Ibid.
43
Ibid.
44
Article 7 of the TRIPS Agreement states:
The protection and enforcement of intellectual property rights should contribute to the promotion of
technological innovation and to the transfer and dissemination of technology, to the mutual advantage of
8
limited for the purpose of promoting public interests, and WTO members can adopt necessary
measures as appropriate to “prevent the abuse of intellectual property rights by right holders or
the resort to practices which unreasonably restrain trade or adversely affect the international
transfer of technology”. 45 Therefore, while recognized as private rights, IPRs also have a
dimension of public interests.
However, the public dimension of the IPRs does not change the private right nature of
IPRs. In China – Intellectual Property Rights, one of the key questions was whether the
government’s sovereign power to censor and prohibit unconstitutional and illegal publications
can also deny copyright protection to those works. 46 China invoked Article 17 “sovereign
exception” of the Berne Convention (1971) and suggested that sovereign powers may deny
copyright protection to unconstitutional and illegal publications.47 China’s claim, however, was
rejected, as the WTO Panel considered the private right nature of copyright to override the
sovereign power of censorship. The Panel concluded that “copyright and government censorship
address different rights and interests,” and that “[c]opyright protects private rights... whilst
government censorship addresses public interests.” 48 The private right nature is therefore
fundamental and overriding, particularly when confronted with public interests.
The recognition of copyrights’ overriding nature as private rights is in fact in line with
general intellectual property jurisprudence founded on classic theories of private property in the
West. It has long been well established in jurisprudence that the justification of intellectual
property protection is grounded on either Hegelian or Lockean theories of private property.49 In
Locke’s labor oriented theory, the injection of labor, through separating something from the
common into private property, justifies the autonomy of the private which safeguards the
individuals from intrusion from others and the public.50 In Hegel’s free will oriented property
theory, the objectivization of the free will into something external creates private property as
well as justifies the autonomy of the private sphere.51 Under either Lockean or Hegelian theory,
private property gains its fundamental significance in modern society. Bentham indicates this
producers and users of technological knowledge and in a manner conducive to social and economic welfare,
and to a balance of rights and obligations.
45
Article 8, TRIPS Agreement.
46
China – Intellectual Property Rights, Panel report.
47
Article 17 of the Berne Conventions (1971), incorporated into TRIPS by Article 9.1 of the TRIPS
Agreement states:
The provisions of this Convention cannot in any way affect the right of the Government of each country of
the Union to permit, to control, or to prohibit, by legislation or regulation, the circulation, presentation, or
exhibition of any work or production in regard to which the competent authority may find it necessary to
exercise that right.
China also cited the interpretation of the Article 17 from the WIPO Guide to the Berne Convention, which
states that “[Article 17] covers the right of governments to take the necessary steps to maintain public order,” and
“[a]uthors may exercise their rights only if that exercise does not conflict with public order.” The Panel agrees with
WIPO’s interpretation. See, China – Intellectual Property Rights, Panel Report, paras. 7.131, 7.132.
48
China – Intellectual Property Rights, Panel Report, para. 7.135.
49
Peter Drahos, A Philosophy of Intellectual Property (Dartmouth Publishing, 1996); Justin Hughes, “The
Philosophy of Intellectual Property,” 77 Georgetown Law Journal (1988-89), pp. 287-366.
50
John Locke, The Second Treatise of Government (Prentice-Hall, 1997), sections 25, 27.
51
Hegel, The Philosophy of Right (T. M. Knox trans, Oxford University Press, 1967), paras. 41, 45, and
addition to para 50.
9
significance by saying that “[p]roperty and law are born together, and die together.” 52 Hayek
even argues that private property “is the heart of the morals of any advanced civilization.”53
Property’s overriding nature of private rights not only accords private property
constitutional significance, but also constructs its second nature as negative rights. On the one
hand, private property is accorded equal protection to liberties such as freedom of speech or
freedom of religion, and has been regarded as one of the fundamental rights to be protected in
law. Locke defines life, liberty, and property (called “estates” at that time) as three basic human
rights.54 This line of heritage continues in the Bill of Rights of the U.S. Constitution, which states
“[n]o person shall be … deprived of life, liberty, or property, without due process of law; nor
shall private property be taken for public use, without just compensation.”55 On the other hand,
the overriding nature of private rights also constructs property rights’ dual nature as both positive
rights and negative rights at the same time. As alienable rights, property rights of course are
“positive rights” that “entitl[e] a person to have another do some act for the benefit of the person
entitled.”56 Moreover, as the rights defending the individuals’ autonomy by shielding individuals
from unwarranted intrusion from the public and the government, property rights are also
“negative rights” that “entitl[e] a person to have another refrain from doing an act that might
harm the person entitled.”57 The property right clause in the UN Universal Declaration of Human
Rights illustrates this “double nature” clearly. While the assertion that “[e]veryone has the right
to own property alone as well as in association with others” indicates the positive right nature,
the statement that “[n]o one shall be arbitrarily deprived of his property” reveals the negative
right nature of private property.58
Building on either Lockean or Hegelian theory, intellectual property gains its
fundamental importance, as both Lockean and Hegelian theories of property justify private
property’s separation from the social public through which separation safeguards autonomy of
the individuals.59 The fundamental private right nature creates a boundary for the government,
which shields the private right holders from public intrusion and further constructs the negative
right feature of IPRs. In EC – Trademarks and Geographic Indications, the WTO Panel
delineates the logic of how the negative right feature of the IPRs derives naturally from its
private right nature.60 In the discussion of the principle in Article 8 of the TRIPS Agreement
allowing Members to limit IPRs for the promotion of public interests, the Panel points out that
the “fundamental feature of intellectual property protection” is that “the TRIPS Agreement does
52
J. Bentham, Theory of Legislation (Admamant Media, 2005), p. 113.
F. A. Hayek, The Fatal Conceit: the Errors of Socialism (Routledge, 1988), pp. 30-1.
54
Jack Donnelly, Universal Human Rights in Theory and Practice (NY: Cornell University Press, 2nd ed.,
2003), p. 31.
55
Amendment V to the U.S. Constitution. This is also been re-iterated through the due process clause in the
Amendment XIV to the U.S. Constitution that states:
… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of
the United States; nor shall any State deprive any person of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the equal protection of the laws.
56
Bryan A. Garner, Black’s Law Dictionary (9th ed., Thomson Reuters, 2009).
57
Ibid.
58
Article 17, UN Universal Declaration of Human Rights.
59
Wenwei Guan, The Poverty of Intellectual Property Philosophy, 38(2) Hong Kong Law Journal (2008),
pp. 367-369,
60
European Communities — Protection of Trademarks and Geographical Indications for Agricultural
Products and Foodstuffs (EC — Trademarks and Geographical Indications), WTO Panel Report (WT/DS174/R, 15
March 2005.).
53
10
not generally provide for the grant of positive rights to exploit or use certain subject matter, but
rather provides for the grant of negative rights to prevent certain acts.”61
Therefore, copyrights in particular or IPRs in general are private rights as well as
negative rights. On the one hand, IPRs are private rights, as the initiation of the “acquisition
procedures for substantive rights and civil enforcement procedures” is generally the
responsibility of the right holders. From this perspective, IPRs are positive rights and private
rights that can be realized through private actions. On the other hand, IPRs are also negative
rights in the form of restraining governments from certain acts. In this regard, property rights—
including IPRs—are recognized as one of the three fundamental human rights together with life
and liberty.
3.2 Copyrights vs. Freedom of Speech
When we treat both property and liberty as fundamental human rights, the conflicts
between copyright protection and the safeguard of freedom of speech present us with a dilemma.
Several questions will need to be clarified. Are they really in conflict? What are they claiming?
These questions lead us to a brief examination of the nature of these rights.
Contrary to the common belief in the conflict between copyrights and freedom of speech
in “Cyberspace Article 23” debates, these two kinds of rights are complementary instead of
contradictory. First of all, copyright and freedom of speech were born together in history. While
modern copyright law is considered as starting from the 1710 British Statute of Anne at the time
of the industrial revolution with the advent of printing press, the birth of the concept of a
copyright ownership was developed earlier in the process of free speech’s fight against
censorship.62 The freedom of expressing ideas and the benefits from prohibiting unauthorized
copying were both the result of submitting the author to the sovereign’s censorship.63 Coombe’s
description of the emergence of the Romantic authorship explains well the intertwined
relationship between copyright and freedom of speech:
As long as the author does not copy another’s expression, his is free to find his themes, plots,
ideas, and characters anywhere he pleases, and to make these his own … Any attempts to restrict
his ability to do so are viewed as censorship and as an unjustifiable restriction on freedom of
expression.64 (footnote omitted)
This intertwined relationship between copyright and free speech was similarly argued by the US
Supreme Court in Eldred v. Ashcroft in proving that copyright and free speech are indeed
compatible. The US Supreme suggests that:
61
Ibid., para. 7.210, emphasis mine.
Lyman Ray Patterson, Copyright in Historical Perspective (Vanderbilt Univ. Press, 1968), pp. 114-142.
63
Keith Aoki, “(Intellectual) Property and Sovereignty: Notes toward a Cultural Geography of Authorship,”
48(5) Stanford Law Review (1996), p. 1328. See also, Foucault, “What Is an Author?” in Paul Rabinow (ed.), The
Foucault Reader (NY: Pantheon Books, 1984), pp. 108-109. In that section, Foucault touches the historical facts in
the late 18th to early 19th century how ownership benefits come to compensate the danger of free speech’s challenge
to sovereign oppression during the development of the modern authorship.
64
Rosemary J. Coombe, “The Properties of Culture and the Politics of Possessing Identity: Native Claims
in the Cultural Appropriation Controversy,” 6 Canadian Journal of Law & Jurisprudence (1993), pp. 251-252.
62
11
The Copyright Clause and the First Amendment were adopted close in time. This proximity
indicates that, in the Framers’ view, copyright’s limited monopolies are compatible with the free
speech principles. Indeed, copyright’s purpose is to promote the creation and publication of free
expression.65
Secondly, copyright and freedom of speech address different aspects of expression. On
the one hand, copyright protects the expression of thoughts and ideas. Ideas and thoughts
themselves, however, are not copyrightable.66 It has been well established in jurisprudence that
copyright laws “protect only the form of expression and not the ideas expressed”. 67 Freedom of
speech, on the other hand, is to ensure that the expression of ideas encounters no improper
restraints. As has been argued, the “essential thrust” of the freedom of speech “is to prohibit
improper restraints on the voluntary public expression of ideas.” 68 However, the form of
expression might be subject to certain restraints, including of course those restraints coming from
copyright protection.69 As the crystallization of the UN Universal Declaration of Human Rights,
the 1966 International Covenant on Civil and Political Rights recognizes that exercise of the
right to freedom of expression “carries with it special duties and responsibilities” and is subject
to certain legal restrictions. 70 “Concerning the First Amendment,” the US Supreme Court
suggests in Golan v. Holder, “some restriction on expression is the inherent and intended effect
of every grant of copyright.” 71 Therefore, copyright and freedom of speech are in fact
complementary. By “supply[ing] the economic incentive to create and disseminate ideas,”
copyright is intended “to be the engine of free expression.”72 Therefore, the US Supreme Court
suggests that “the Copyright Act’s distinction between copyrightable expression and
uncopyrightable facts and ideas” embodies the protection of freedom of speech. 73 By protecting
the expression of ideas, copyright is an indispensible part of defending, not eroding, freedom of
speech.
Not only are they complementary, copyright and freedom of speech imply the same
limitation of arbitrary interference from governments as they are both essentially “negative
rights”. In general, human rights are commonly categorized into either positive rights or negative
65
Eldred v. Ashcroft, 537 U.S. 186, 219 (2003). Emphasis original.
US Copyrights Act (17 U.S.C. 102(b)) for example states that copyright protection for a work does not
extend to “any idea, … or discovery regardless of the form in which it is described, explained, illustrated, or
embodies in such work.” See also, Harper & Row v. Nation Enterprises, 471 U.S. 539, 556 (1985); Feist
Publications v. Rural Tel. Service Co., 499 U.S. 340, 344 (1991).
67
New York Times Co. v. United States, 403 U.S. 713, 726 (1971), footnote of Justice J. Brennan’s
concurring opinion, emphasis mine. This was reiterated by the US Supreme Court in Harper & Row v. Nation
Enterprises, 471 U.S. 539, 581 (1985).
68
Estate of Hemingway v. Random House, 23 N.Y. 2d 341, 348, 244 N.E. 2d 250, 255 (1968), emphasis
mine. This statement is reiterated by the U.S. Supreme Court in Harper & Row v. Nation Enterprises, 471 U.S. 539,
559 (1985).
69
In San Francisco Arts & Athletics v. U.S.O.C. (483 U.S. 522, 532-535 (1987)), when facing the tension
between property rights—trademarks in this case—and freedom of expression, the US Supreme Court suggests that
public access or use of a word like “Olympic’—an issue of freedom of expression—must be balanced against a
limited “property right” attained by an entity for a word when the word acquires value as the result of that entity’s
labor, skill, and expenditure. Property rights thus set limit on freedom of speech.
70
Article 19(3), 1966 International Covenant on Civil and Political Rights.
71
Golan v. Holder, 132 S. Ct. 873, 889 (2012).
72
Harper & Row v. Nation Enterprises, 471 U.S. 539, 558 (1985).
73
Ibid., at 560.
66
12
rights. 74 Attainment of positive rights usually does not directly lead to any government
obligations. An example of positive rights would be the right to wellbeing.75 The existence of
poverty, however, does not indicate the Government’s violation of the positive human rights.
Negative rights are different. Freedom of speech, together with most of the civil and political
rights, the so-called first generation human rights including freedom of religion and freedom of
association etc., is generally considered as one of the “negative rights,” which falls into a class of
rights protecting individuals’ freedom from unwarranted infringements by governments.76 The
guarantees of this class of rights take the form of restraints on governments. As to freedom of
speech, the U.S. Constitution, for example, states clearly that “Congress shall make no law …
abridging the freedom of speech.”77 Any government censorship then might be a violation of the
freedom of speech. Any law passed that limits the freedom of speech will be then
unconstitutional. Freedom of speech as a civil and political right is to defend individuals’ liberty
from government intrusion. Similarly, the UN Universal Declaration of Human Rights states that
“[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.” 78 Any cruel treatment or punishment of criminal suspects from a government
might be then a violation of human rights. As negative rights, civil and political rights are
weapons for individuals to fight against governments.
As revealed in the discussion above, property rights too are essentially negative rights,
which are recognized as fundamental human rights together with life and liberty. As negative
rights, property rights safeguard the autonomy of individuals against any unwarranted
interference from governments, which lays down the foundation of the modern society. As
illustrated in the case China – Intellectual Property Rights, copyrights as negative rights set the
limit of the government censorship which might have been justified under Article 17 of the
Berne Convention. As negative rights, both freedom of speech and copyrights set limits on the
government when government interference is in conflict with private autonomy. Instead of
conflicting with each other, both copyrights and freedom of speech have government’s
unwarranted interference as the common “enemy.”
Therefore, the common perception of the conflict between the all-embracing right of
communication to the copyright holders and the freedom of speech of the public in the
“Cyberspace Article 23” debates is somewhat misleading. What copyright laws protect, the
expression of ideas, is an essential part of the freedom of speech. Moreover, proprietary interests
of right holders over copyrights and freedom of speech of individuals are complementary and
equal as they are both fundamental rights of individuals. No one’s freedom of speech can
naturally override others’ property rights.79 In Haper & Row for example, the US Supreme Court
indicates clearly that the freedom of speech embedded in the First Amendment does not at all
74
J. Donnelly, op. cit., 30.
For example, Article 25.1 of the UN Universal Declaration of Human Rights states that:
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his
family, including food, clothing, housing and medical care and necessary social services, and the right to
security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood
in circumstances beyond his control.
76
As to so-called generations of human rights, see Cees Flinterman, “Three Generations of Human Rights,”
in Jan Berting et. al. eds., Human Rights in a Pluralist World: Individuals and Collectives (Westport, CT.: Meckler,
1990), pp. 75-82.
77
The First Amendment of the U.S. Constitution.
78
Article 5, UN Universal Declaration of Human Rights.
79
See, Mark A. Lemley & Eugene Volokh, “Freedom of Speech and Injunctions in Intellectual Property
Cases,” 48 Duke Law Journal (1998-1999), pp. 166-167.
75
13
shield speech that violates another’s copyright.80 Moreover, as these two rights are both negative
rights of individuals, they are guaranteed to have overriding interests against unwarranted
government interference. In this regard, the hidden yet real conflict in the “Cyberspace Article 23”
debates, as well as in DEA issue in the UK and ACTA concerns in the US and the Europe, is the
tension between right holders’ property interests and users’ freedom of speech interests on the
one hand and government’s regulatory interference on the other.
3.3 Hong Kong Model: “One Regime Two Systems” in the Digital Era
The analysis above indicates that the seeming conflict between copyright and freedom of
speech conceals the real contention between the individuals and the Government during Hong
Kong’s copyright amendment process. The overwhelming criticism of “Cyberspace Article 23”
indicates that the public’s distrust of the Government is leading to the concern that the
Government’s proposals might have crossed the line in the individual-government dynamics.
How has the Bill of “Cyberspace Article 23” portrayed the boundary of the individualsgovernment dynamics as to copyright protection in the digital era?
Ever since the beginning of the public consultation, the Authority has been trying to
solicit views from right holders, users, and industry. As mentioned above however, copyright
holders, user groups, and OSPs from the Internet service sector indicated different, often
conflicting perspectives during the process of public consultation and further engagement. The
Copyright (Amendment) Bill 2011 reflects a carefully crafted yet somewhat delicate balance
between right holders vs. users and OSPs. As to issues relating to users’ various individual rights,
the Bill in fact appears to be quite conservative.
First of all, to protect users’ right of access to Internet, Hong Kong’s Copyright
(Amendment) Bill 2011l rejects the suggestion of a “graduated response” system that might have
negative impacts on users’ access to Internet. Copyright owners, the IFPI for example, have been
pressing the introduction of a “graduated response” system that allows OSPs to suspend repeat
infringers’ Internet access if they disregard warning notices three times. 81 Some jurisdictions,
such as the UK, France, South Korea, New Zealand and Taiwan, have introduced the “graduated
response” system into law to combat copyright online infringements.82 The application of the
“graduated response” system however stirs up a lot of debate on its impact on civil rights and
liberty.83 Therefore, the Bill suggests, “it is not an opportune time to consider introducing such a
system in Hong Kong” as the “graduated response” system “is clouded by debates over its
80
Harper & Row v. Nation Enterprises, 471 U.S. 539, 555-560 (1985).
See, e.g., the International Federation of the Phonographic Industry (IFPI), “IFPI Comments on Hong
Kong Copyright (Amendment) Bill 2011,” July 2011. Available via LegCo at: http://www.legco.gov.hk/yr1011/english/bc/bc10/papers/bc100723cb1-2780-2-e.pdf (accessed on 26 June 2012).
82
Annemarie Bridy, “Is Online Copyright Enforcement Scalable?” 13 Vanderbilt Journal of Entertainment
and Technology Law (2011), p. 727. See also, Danielle Serbin, “The Graduated Response: Digital Guillotine or a
reasonable Plan for Combating Online Piracy?” 3(3) Intellectual Property Brief (2012), pp. 42-52.
83
In France for example, the French Parliament passed the Creation and Internet Law—commonly called
the “graduated response” law—in May 2009, under which the administrative body “Hadopi” is vested the power to
issue warning notices to suspected users and to suspend repeat infringers’ internet access for up to one year. The
Law triggers a huge debate. See, e.g., Trisha Meer and Leo Van Audenhove, “Surveillance and Regulating Code: An
Analysis of Graduated Response in France,” 9(4) Surveillance & Society (2012), pp. 365-377. See also, Peter K. Yu,
“The Graduated Response,” 62 Florida Law Review (2010), pp. 1401-1402. Peter Yu discusses the negative impact
of the system on freedom of speech.
81
14
implications on civil rights and liberties even in jurisdictions where legislation introducing the
system has been passed.” 84
Moreover, the copyright owners’ all-embracing right to communication as newly
introduced in the Bill covers all modes of electronic transmission for copyright works with
relevant criminal sanctions against the infringers, and thus provides adequate protection to
copyright holders. To be consistent with demands from the advances of new technology, in
particular “streaming” technology, the preliminary proposal suggests criminalizing the
communication of copyright works through “streaming” technology in non-commercial contexts
to catch P2P file-sharing.85 While copyright owners consider it to be too technology specific to
cover new forms of infringements, users suggest the criminalization of streaming in the nonbusiness context might “inhibit free flow of information.”86 The Bill considers the concept of
criminal sanctions against large-scale infringing activities that cause prejudice to the copyright
owners to be already available in the current Copyright Ordinance. Therefore, to balance the
conflicts of interests between copyright owners and the users, the Bill does not introduce what
right holders insisted new criminal liability pertaining to activities of P2P file-sharing and
unauthorized downloading, except for active acts making unauthorized communications to the
public.87
Thirdly, the Bill also maintains the “Norwich Pharmacal” principle which puts right
holders’ requests for disclosure of the identity of infringers under the court’s scrutiny. During
early public consultation, however, copyright owners consider the “Norwich Pharmacal”
proceedings to be “complicated, timely and costly,” which “severely inhibited right holders’
incentive to take legal actions.” 88 Some copyright holders therefore supported introducing a
simpler and more expedient infringer identity disclosure mechanism similar to the US subpoena
system to be provided under the Copyright Ordinance. 89 Users, however, expressed concerns
about potential misuse of personal data and the disclosure mechanism’s “chilling effect on
freedom of expression.”90 The Bill’s favor of maintaining the “Norwich Pharmacal” principle
over introducing a US-like subpoena system indicates the effort of achieving a delicate balance
between the users and the copyright holders, yet it appears to be more towards copyright users’
interests.
This Bill’s attention to the right of access to the Internet, personal privacy and freedom of
speech indicates the Government’s self restraint in relation to individual rights during the
copyright amendment process. The Government’s solicitation of views from right holders, users,
and industrial sectors during the amendment process shows intentional or unintentional selfrestraint from over-intrusion into the balance of interests among the three in the digital
environment. This is particularly true in the authority’s effort to enlist the support of the OSPs in
the combat against online privacy through developing a voluntary code of practice for OSPs in
fighting online copyright infringements via a Tripartite Forum.
As proposed in the 2008 Preliminary Proposals, the Tripartite Forum comprising
representatives of right-holders in the content industry such as the Motion Picture Association,
84
CEDB Hong Kong, the 2009 Final Report, para. 13.
CEDB Hong Kong, the 2008 Preliminary Proposals, para. 11.
86
CEDB Hong Kong, the 2009 Final Report, Annex B: “Summary of Views Received.”
87
Therefore, as an initiator of this sort of activities might still be penalized under the current Copyright
Ordinance as it is in the Chan Nai Ming Case.
88
The 2008 Preliminary Proposals, Annex A: “Summary of Views Received.”
89
Ibid.
90
Ibid.
85
15
online service providers like the Internet Professionals Association, and user groups was
established in July 2008.91 Building on stockholders’ collaborations through the Tripartite Forum,
the Bill introduces a whole new section of statutory limitations on the liability of OSPs in
combating online piracy through a distinctive way to balance the interests of the right holders,
the users, and the OSPs.92 The Bill authorizes the CEDB Secretary to publish a non-statutory
Code of Practice for providing practical guidance such as the “Notice and Notice” and “Notice
and Takedown” practices which were codified in the UK and the US.93 Having satisfied the
requirements in the non-statutory Code of Practice will create a safe harbour shielding OSPs
from certain legal liabilities of copyright infringement.94 As the Code of Practice is not statutory
but supplementary in defining the legal liability of the OSPs, the Bill creates a model of “one
regime two systems”—combining statutory law with a non-statutory Code of Practice—in
copyright protection pertaining to OSPs’ liability.95
The authority’s active engagement with views from copyright holders, users, and industry
in public consultation and its allowing the Tripartite Forum to come up with a Code of Practice
defining OSPs’ legal liability indicates Hong Kong’s unique model of adapting copyright
protection to the digital era. The authority’s self-restraint in refraining from over-intrusion into
the tripartite stockholders’ balance of interests—handling private rights privately—confirms our
analysis of the private right nature of copyrights and copyrights’ complementary relationship to
freedom of speech. As copyrights and right to freedom of speech are both negative rights against
unwarranted intrusion from the government, the authority’s retreat is obviously desirable and
would increase the legitimacy of the legislation process. The Bill’s “one regime two systems”
model of copyright protection—combining statutory law with a non-statutory Code of Practice to
define OSPs’ liability—deserves a positive recognition. Hong Kong’s “one regime two systems”
model also provides positive insights balancing the conflicting interests of right holders, users,
and OSPs in copyright protection in the digital environment in the UK, the EU, and other
jurisdictions.
4. Concluding Remarks
The tension between the copyright owners’ interests and the social public as revealed in
Hong Kong’s Cyberspace Article 23 debates is not new. There has also been social tension
between copyright owners and the public in relation to copyright protection vs. free
dissemination of information in Hong Kong’s two early amendments of the Copyright Ordinance
for the analogue era.96 Neither is the social tension local at all. The ACTA controversies in the
US and the EU, the critiques of the “graduated response” system in France, and the DEA debates
in the UK all reveal the tension between copyright owners and the social public in one way or the
other. The real issue here actually travels beyond the realm of copyright law.
As revealed above, the seeming conflict between right holders’ interests in copyright
protection and the public’s concerns of the limitations of copyright protection on freedom of
91
CEDB Hong Kong, the 2008 Preliminary Proposals, paras. 17, 21; the 2009 Final Report, paras. 9-13.
Sections 88A to 88I, Division IIIA (newly added), Copyright (Amendment) Bill 2011.
93
Ibid., section 88I. See also, the 2009 Final Report, paras. 9-13.
94
Ibid., sections 88B(3) and 88H.
95
The Bill states clearly that “[a]ny code of practice … is not subsidiary legislation.” Ibid., section 88I(4).
96
See supra discussion Section 2.1.
92
16
speech is misleading. While copyright protects the ideas’ expression, the right to freedom of
speech protects the expression of ideas. These two are not necessarily in conflict with each other.
Rather, both copyrights and the right to freedom of speech are negative rights, shielding
individuals from unwarranted intrusion from the government. Therefore, copyright protection
forms an integral part of the freedom of speech. The common perception of the seeming conflict
between copyright protection and freedom of speech in Hong Kong’s Cyberspace Article 23
debates conceals the common distrust of the government from both copyright holders and the
public. Contrary to the common perception, in minimizing government’s intrusion in the balance
of interests among right holders, users, and the industry in copyright protection, Hong Kong’s
“one regime two systems” model provides insights for balancing conflicting interests in adapting
copyright protection to the digital era.
The public’s fear of unwarranted government interference in freedom of speech as
indicated in the “Cyberspace Article 23” debates should not be solved within the framework of
the current copyright amendment. As the analysis above indicates, this distrust of the
government is not copyrights related at all. Government’s possible interference in the freedom of
speech is a serious constitutional issue to be dealt with somewhere else instead of in the
copyright amendment framework. Moreover, boycotting the copyright amendment under the
banner of individuals’ freedom of speech is unfortunately endangering individuals’ freedom of
speech as copyright law’s protection of the expression of ideas is essentially the core value of the
freedom of speech.
17