The 85-page Copyright (Amendment) Bill 2011 introduces a safe harbour for online service providers (OSPs) that might save them from infringement liability and establishes a new exclusive right for copyright owners to communicate their works electronically.
“It’s definitely a good thing that we have clarified the position of OSPs,” said Charmaine Koo, a partner at Deacons.
“There has been a huge debate between copyright owners and OSPs about what OSPs’ responsibilities in relation to IP infringement are. We have now come to some sort of middle ground where we are generally following the US and many other major jurisdictions.”
Under the proposed changes, OSPs are required to take down an infringing work after they have been notified that such work exists. Those who comply with the procedures will not be liable for infringement by its users.
Koo said that the general position is that if an internet service provider (ISP) or OSP does not have knowledge of an infringing act then it is unlikely to be held liable.
Details of what are described as “notice notice” and “notice takedown” procedures, which are in place in countries such as the US and Singapore, will be set out in a Code of Practice that is expected to come out in July.
Under the notice notice scheme, OSPs have to forward a copyright owner’s notice of alleged infringement to the user, while the notice takedown system requires OSPs to remove or restrict access to infringing content after receiving a notice.
The bill includes a technology-neutral right for copyright owners who communicate their works electronically. The provision is an attempt to avoid having to make repeated amendments to the rules as a result of rapid technological developments.
“At the moment, copyright owners have the right to broadcast and perform in public,” said Koo. “But now with new media and technology, the ways that they could exploit a right have expanded, and it is often unclear whether the existing wording covers the new methods of exploitation.”
Koo highlighted the word “broadcast” as an example.
“Is streaming considered broadcasting?” said Koo. “To avoid arguments, a general term ‘communication’ will cover distributing or showing of a work via every type of media.”
While the bill tries to update the copyright system, not all parties are satisfied and it is still unclear who will take responsibility for monitoring infringement, with OSPs claiming that this bill places too much of a burden on them.
Koo said smaller OSPs are concerned about having too much responsibility. They are worried about the additional costs of having to hire extra people to deal with complaints.
A Legislative Council brief has ensured, however, that OSPs “are not required to actively police their service platforms for infringing activities”.
The bill has also been criticised for not doing enough to fight peer-to-peer (P2P) piracy.
“The notice and takedown procedure doesn’t work with P2P piracy, which is the most prevalent form,” said Monique Woo, a foreign legal consultant at Hogan Lovells. “By the time you send a notice to the user, the link could be gone and a lot of harm could be done already.”
Woo supported the idea of bringing to Hong Kong the three strikes system, where an internet account may be suspended after three acts of infringement. She cautioned that the public would have to be clearly informed of how the system works first to avoid backlash.
“The three strikes approach can be implemented in different ways,” said Woo. “I think it is an approach that generates a lot of more negative reaction than it deserves because the public does not fully understand the different ways in which it can be implemented.”
Woo added that while the bill has added several more ways copyright owners could obtain additional damages, there are still no statutory damages for copyright infringement.
“It’s difficult to prove what losses you’ve suffered from infringement,” said Woo. “If we have statutory damages then that would make it easier for copyright owners.”
A Bills Committee to further scrutinise the bill is likely to be set up in the fourth quarter of the year and the bill may be passed by next summer.
