“Internet Article 23” Likely to be Passed as Pan-democrats Take U-turn
Real Hong Kong News
2nd December, 2015
The controversial Copyright (Amendment) Bill 2014 is set to be sent to the Legislative Council (LegCo) for second reading on 9th December 2015. Dubbed as “Internet Article 23” or “Cyberspace Article 23” , the Bill has long been questioned by netizens in terms of its restrictions on parody and unclear definition of whether sharing footage or “secondary creation” (parody) on social media will be prosecuted. Should the Bill be passed, netizens worry that parodies, especially political satire (new lyrics for existing songs and edit of movie posters are extremely popular in Hong Kong) and posting screen grabs from movies or photos on social media as comments, could be constituted as an offense. Netizens also criticise the Bill for failing to exempt non-commercial parodies, as the Bill can then be abused and used by the authorities to carry out political prosecutions and suppress dissents.
“Our main concern about the Bill is that the current proposed exemptions are not wide enough to cover all popular forms of creation among netizens; whilst the newly (added) ‘communication’ right is too wide and in fact only targets at ‘streaming’. It causes the dis-proportionality of the rights under the Bill between the copyright owners and netizens,” said Craig Choy, Legal Advisor of concern group Keyboard Frontline.
“Also, the exemptions given obviously missing the essential clause under the same UK provision which overrides the contractual terms imposed by the copyright owners to prohibit parody. In this case, Hong Kong netizens will not enjoy the full civil liability exemption as the copyright owner may still sue a netizen for breach of contract,” added Choy.
According to Oriental Daily, sources said that US Consulate General in Hong Kong, chambers of commerce and large entertainment companies have been pressuring legislators to support the Bill. With the unquestioning support from the pro-China camp, coupling with the votes from some of the pan-democrats legislators, who originally objected the Bill but given in to the pressure and decided to either abstain or vote for the Bill, the Bill is likely to be passed next month. So far, Raymond Wong Yuk-man is the only one legislator (independent and often labelled as radical) who have pledged to filibuster the Bill by proposing over 900 amendments to the Bill.
The US Government has been pushing for worldwide protection for the American companies and copyright holders against online copyright infringement. Hong Kong SAR Government conducted a round of public consultation on Copyright Ordinance in 2006, but the public was extremely concern that the Ordinance will impose strict limitations to “secondary creation”.
Netizens were very concerned about their freedom of expression and creation (via parodies) being harmed by the Bill when the consultation started – a number of petitions and new organisations were formed to express these concerns. With the public outcry, in 2012, the first reading of the Bill took place but the Bill was not passed before LegCo’s recess due to the filibuster launched by a handful of “radical pan-democrats” legislators. The HKSAR Government included a number of exemptions in the Amendment Bill, for example the exemptions of non-commercial and non-large-scale parody. However, netizens and different independent organisations continue to object the Bill.
The second reading was originally set to be held last Wednesday (25/Nov). However, since legislator Raymond Wong Yuk-man proposed 903 amendments to the Bill, the second reading was pushed back to 9th December.
According to source, US Consul General Clifford Hart met with Ray Chan Chi-chuen from People Power and Claudia Bowring (or Mo Man-ching) from Civic Party early this year, and criticised that Hong Kong is falling behind in protecting intellectual property and the Bill has to be passed as soon as possible to protect business interests.
Bowring said that although she inclines to object the Bill, she understands the importance of balancing the right of copyright owners and creative individuals and Civic Party is still in two minds. Ray Chan said that he would vote against the Bill but will not join to filibuster.
Cyd Ho Sau-lan of the Labour Party said that she thinks that the statutory “safe harbour” stipulate in the Amendment is “a good thing”, and all four of the Labour Party will probably abstain from voting at the second reading. Sin Chung-kai of the Democratic Party said that he would recommend the Party to support the Bill in order to motivate the development of innovation in Hong Kong.
(Sources: Oriental Daily, Local Press, Keyboard Frontline)
- Screen grabs of movie or TV drama are exempted if sufficient accreditation is included (for example, name of movie, director, etc. For example, a classic example is the following JPG comment which currently looks like this (caption: human beings always repeat the same mistake):
Should the Bill passes, the “safe” way of using the same screen shot is to include detail information about the source:
- See Infringement by communicating to public: main concerns is about the additional word “communication”
- Parody is often expressed in songs by netizens in Hong Kong. Golden Forum is the leading creative source of such parody, which is deemed illegal even though a new “music video” is created. Below are some samples of such parody/secondary creation:
- Based on C All Star’s song with new lyrics about anti “Cyberspace Article 23”: https://www.youtube.com/watch?v=OAqV4hV15Ng
- Using Juno Mak’s love song, this song mocks Lau Kwong-wah for not speaking in the 2-hour long negotiation between the government electoral reform team and student leaders during Umbrella Revolution: https://www.youtube.com/watch?v=RMZj1P-X9Ok
- Based on a duet by Alex Fong and Stephy Tang, this secondary creation is about supporting the Hong Kong Football Team at the FIFA 2018 World Cup qualifier: https://www.youtube.com/watch?v=AMMIHkxqU48
- A random parody called “Buddha California” based on Hotel California, addressing Buddhism in a funny manner:
Around 10 songs were also created surrounding the Buddhism theme, together, Golden Forum bundled up these song and branded the series as the first “Buddhism concept album”. Other songs in the “concept album” include Buddha Viva: https://goo.gl/3Aa4QX ; Gautama Buddha Dance: https://goo.gl/Nbzbhh; I promise to take you for tonsure: https://goo.gl/7ZXVSk)
- A satire based on TWIN’s song making fun of the case of female protester was found guilty to assault a policeman with her breasts: https://www.youtube.com/watch?v=V7hkNnelt3A
- Copyright (Amendment) Bill 2014 full text: http://www.gld.gov.hk/egazette/pdf/20141824/es32014182421.pdf