A bill which allows, rather than limits, social commentary via parody, satire and fan fiction has caught the eye of veteran Hong Kong film producer John Chong, who says he expects the bill to pass Hong Kong’s Legislative Council (LegCo) soon.

“This clearer bill explicitly allows rather than limits what netizens can do, so it is more about protecting them than the right owners,” says Chong, chief executive director at Pegasus Motion Pictures in Hong Kong.

The Hong Kong government introduced the Copyright (Amendment) Bill 2014 into the LegCo on June 18, 2014 to update Hong Kong’s copyright regime and to ensure that it keeps pace with technological and overseas developments. It also provides a number of copyright exceptions to facilitate reasonable uses of copyright works.

Some Hong Kong residents have expressed concern that there is such a bill all of a sudden, worrying about their freedom of expression being deprived, but this bill actually provides better protection, Chong says. “If this does not pass, netizens’ re-creations could easily be sued for infringement and this is not something we want to see,” he says.

Key proposals under the Bill have been formulated during extensive consultations since 2006, and striving to reflect a fair balance among the interests of copyright owners, users and the general public:

Introducing a technology-neutral exclusive right for copyright owners to communicate their works through any mode of electronic transmission. The new right will assist copyright owners in exploiting their works in the digital environment and promote the development of digital content.

Introducing corresponding criminal sanctions against unauthorized communication of copyright works to the public. To allay concerns about the possible impact on the free flow of information across the internet and to provide greater legal certainty, the legislation will clarify the criminal liability of causing prejudice to the copyright owner and provide that the court will examine all the circumstances of a case and in particular the economic prejudice, having regard to whether the infringing copy amounts to a substitution for the work.

Expanding the scope of copyright exception under the existing law to balance copyright protection and reasonable uses of copyright works and to protect users’ freedom of expression, by exempting criminal and civil liabilities for the following purposes in appropriate circumstances:

(i) Parody, satire, caricature and pastiche. The initial debate on parody went on for a long time. Studios were initially concerned, but they are now very open as long as their rights are not infringed Chong says. “If you take five minutes out of a 90-minute movie for a parody, studios are okay if it is not for commercial purposes. However, if you only change the ending or some lines and claim it as your own film, that would be intolerable,” he says. “The biggest concern for studios is not about how much but how little people re-create to claim [something] as their own creation. Even if that is solely for sharing among online friends and not for sale, would that cause infringement? This would be a very tough question to answer.”

(ii) Commenting on current events.

(iii) Quotation.

(iv) Temporary reproduction of copyright works by online service providers (OSPs), which is technically required for the digital transmission process to function efficiently.

(v) Media shifting of sound recordings. “Illegal recording in local cinemas has been fairly well-controlled nowadays. A decade ago, there were countless people recording movies in cinemas and uploading them online, so the studios formed an emergency unit to undertake enforcement actions. I was the spokesperson of that and netizens got mad at me for condemning their sharing behaviour, claiming that they would no longer watch Hong Kong movies for revenge,” Chong says. “The emergency unit is now replaced by one formed by the Hong Kong Film Development Council, but it is not as efficient as the one we had.”

(vi) Giving educational instructions (especially for distance learning) and facilitating daily operations of libraries, archives and museums.

Establishing a statutory safe harbour for OSPs so that their liabilities for infringement occurring on their platforms could be limited, provided that they meet certain conditions, including the taking of reasonable steps to limit infringement when being notified.

This safe harbour looks good because studios were required to prove their film rights while filing complaints to YouTube against individual uploaders, Chong says. “Studios would have been happier if YouTube demanded the same from the uploaders, but it did not. So studios had a huge argument with YouTube, and I also have publicly condemned YouTube’s actions in some trade magazines. It has since acted faster upon requests.”

Studios also note that there tends to be more Hong Kong films uploaded than those of Hollywood. “It is indeed very strange but we cannot say that YouTube protects American films more because The Expendables 3 was spotted on YouTube prior to its August release,” Chong says.

Introducing additional factors for the court to consider in assessing damages in civil cases in which infringement has been established.

Chong says that enforcement was simple in the past. Studios first worked with Customs to identify the uploaders, then requested the internet service providers for the infringers’ information to issue cease-and-desist letters requesting damages. A classic example of the collaboration among studios, Customs and ISPs is the action undertaken for a film titled House of Fury, which made news headlines in the summer of 2005. “The studio was able to calculate and prove its damages. But if that amount had been imposed, the infringer would be broke,” Chong says. “We therefore only asked for US$3,000 to US$4,000 from the individual. It was more about creating a deterrent effect.”

Despite the positive outcome, the ISPs were very uncooperative and demanded extremely high administration fees from the studios, adds Chong.

The Copyright (Amendment) Bill 2014 was published in the gazette on June 13 and introduced into LegCo for First and Second Readings on June 18.