"Hong Kong’s Copyright Ordinance (“CO”) needs to be updated to keep up with advancements in technology," says Amita Haylock, a partner, at Mayer Brown in Hong Kong. "In an age where technological advancement outpaces legal development, the present copyright framework in Hong Kong is particularly powerless in protecting copyright owners against digital piracy as it is “outdated” and does not conform with international standards."

The amendments proposed in the public consultation paper on updating Hong Kong’s copyright regime released by the Government (the “Consultation Paper”) include the introduction in the CO of a technology-neutral exclusive right for copyright owners to communicate their creative works to the public on any electronic platform. This would enhance the current CO, which only provides for specific methods of communication, such as “broadcasting” or including the work in a cable programme service. The new right to communicate would be expressed in broad terms, so as to cover current and future methods of electronic transmission.

Haylock adds, "The Consultation Paper also proposes the introduction of safe harbour provisions for Online Service Providers

(“OSP”) for copyright infringement on OSP platforms. To benefit, an OSP when notified of a copyright infringement must take reasonable steps to limit or stop the infringement, including reasonable steps to remove the alleged infringing work.

These proposed safe harbour provisions strike a balance between protecting creative works for copyright owners and safeguarding the operations of OSPs and are important to keep the CO up to date with technological developments, in particular the internet."

After the three-month public consultation on updating Hong Kong’s copyright regime ends on February 23, 2022, the Government will prepare an amendment bill for the CO.

"Some of the Government’s proposal to update the CO as set out in the Consultation Paper are based on the Copyright

(Amendment) Bill 2014. Back then, the bill was shelved because of filibustering in the Legislative Council. As the political situation in Hong Kong has evolved since 2014 and taking into account how outdated our copyright laws are, it is probable that most of the proposals of the new amendment bill will be passed by the Legislative Council."

If the amendments contemplated in the Consultation Paper are implemented, Hong Kong will be in a better position to deal with copyright infringement in the digital environment. Hong Kong’s current copyright laws are outdated and these amendments are much needed to modernise Hong Kong’s copyright regime.

"Improving Hong Kong’s copyright regime also means fostering creativity in the territory which is beneficial to creators," she says. "Providing a clear legal framework for copyright is beneficial to copyright users as well, to enable them to understand the limitations of their use. All in all, the amendments proposed in the Consultation paper are key to developing Hong Kong as a regional intellectual property trading centre, as supported by the People’s Republic of China’s 14th Five-Year Plan."

Excel V. Dyquiangco