The Journalism and Media Studies Centre has submitted a position paper to the Hong Kong government for its draft Copyright (Amendment) Bill. Authored by Professor Peter Yu, a leading expert in international intellectual property and communications law, “Digital Copyright and the Parody Exception: Accommodating the Needs and Interests of Internet Users” is the third position paper submitted by the JMSC to the government’s consultation exercise.
The Hong Kong government has stated that, under its proposed amendments, only parodies that cause considerable economic loss to copyright owners would be subject to the copyright law. However, Internet users and cartoonists remain concerned that the amendments could criminalize anyone who parodies copyrighted material. They want the law to exempt everyone from civil and criminal liabilities out of fear that creators could start self-censoring or face costly legal battles.
JMSC’s position paper examines the individual options identified by the government and argues that both civil and criminal exceptions, with appropriate qualifications, should be created for parodies, satires, caricatures and pastiches. It also calls for an exception for “predominantly non-commercial user-generated content” or PNCUGC, similar to the one Canada recently adopted. The paper explains why these exceptions would benefit both copyright owners and Internet users and makes four recommendations:
1. Refrain from picking among the three options identified in the government consultation document, as they are not mutually exclusive.
2. Introduce a criminal exemption for parody, satire, caricature or pastiche.
3. Introduce a fair dealing exception for parody, satire, caricature or pastiche and provide corresponding changes to the moral rights provisions.
4. Introduce a copyright exception for PNCUGC and provide corresponding changes to the moral rights provisions.
While the exceptions endorsed by the JMSC paper do not provide Internet users with maximum protection, their adoption could enable the amended law to “strike a more appropriate balance among copyright owners’ need for greater protection, Internet users’ need for adequate space to develop content they generate themselves, and both the government’s and online service providers’ need to foster the Internet’s healthy development.”