SCMP Tuesday, April 10, 2001


Copyright 'overreaction' a blow to free society

JAMES TIEN

Anyone who likes this article and faxes or e-mails it to friends will have violated the revised Copyright Ordinance, for which they are liable to a $50,000 fine and four years in prison. Such a stiff penalty is the consequence of changes introduced by the Intellectual Property (Miscellaneous Amendments) Ordinance 2000, which also affected the Patents Ordinance and Prevention of Copyright Piracy Ordinance.
Hong Kong, as a result, has become the first jurisdiction to criminalise not only pirates, who deserve no mercy, but also ordinary citizens, who circulate materials for personal interest and not for profit. The effect of the revised Copyright Ordinance may be not only to curb piracy but also to stifle information exchanges and intellectual discourse vital to a free, enlightened society. While the business community has long advocated a comprehensive law against pirated computer software and audio-visual discs, that is not the same as giving blanket approval for stopping the casual, innocuous, and reasonable use of information in the public domain.
The Government acted, or rather, overreacted, to piracy because for years it felt helpless as traffickers of bootlegged computer software and entertainment discs operated with virtual impunity in the territory and across the border. Foreign companies applied pressure and, later, so did local artistes, producers and merchants.
The draconian course, which the Government invariably took, was to lump together all forms of unauthorised reproduction, regardless of their differing severity, and slap on stiff penalties as a deterrent to pirates and as a concession to the multinationals who have a lot of lobbying clout. The Government and the companies figured they had to be swift and decisive because advances in digital technology and the rise of the Internet were making it easier to copy and circulate ''proprietary'' materials. Neither could they be oblivious to the damages done to the music industry by Napster and similar Web sites from which surfers obtain free downloads. The victories that record companies chalked up against the Net music-traffickers last year must have emboldened these other industries to also get tough.
The Liberal Party and the local business community sided overwhelmingly with the Government and foreign corporations against piracy because free trade would be doomed if precious materials were free to be stolen. But few in my commercial sector now agree with the revised, immoderate ordinance that is so sweeping and invasive. We want a stay in those aspects of the law that apply to individuals and institutions who only copy and circulate limited quantities of materials for knowledge and not for commercial purposes. This stay should last until these sections of the ordinance are repealed or amended.
I think it was an oversight by the Government to plunge headlong into drafting the Intellectual Property (Miscellaneous Amendments) Ordinance without first seriously studying the legislative precedents in other equally developed societies, which are still striving to achieve a balance between protection of copyright and that of personal freedom and curiosity. The civil servants who conceived the bill wanted to take dramatic action not simply to produce a sensible law but also to send out a strong statement, and that was not the right way to craft this piece of legislation.
Government lawyers apparently did not consult sufficiently with the International Federation of Reproduction Rights Organisations, an umbrella group founded in 1980 to stem global breaches of copyrights that predated the digital revolution. The federation has carefully monitored various countries' progress in drafting, enacting and enforcing laws that ensure decent returns for companies and artistes for their creative works but also respect the need to allow proper access to information.
I believe Hong Kong should examine the federation's constantly updated findings and seek advice on how to achieve a similar equilibrium. Some jurisdictions such as the European Union countries of Austria, Belgium, Germany, Greece, Portugal and Spain impose a copying ''equipment levy'', a portion of whose proceeds goes to compensate artistes, publishers and others affected by limited copying and circulation of their works. These countries, minus Austria but including The Netherlands, have, besides certain exemptions for the purposes of education, a statutory licensing regime to tax the users according to their status and their volume of photocopying.
I particularly like the Dutch law's dispensation for limited use of materials. This states: ''It is permissible to reproduce on behalf of an enterprise, organisation or other establishment, individual articles, reports or other texts which have appeared in a daily or weekly newspaper or weekly or other periodical, or short passages from books, pamphlets, and other writings ... provided that the reproduction is limited to the number of copies which the enterprise, organisation or establishment reasonably needs.''
Singapore has likewise allowed for the use of a ''reasonable portion'' of any print or electronic publication, amounting to a total of no more than 10 per cent of the object's content or a chapter of a book.
The Hong Kong Government is now willing to modify its hard stance but it still needs to give more if honest people and businesses are to enjoy fair access to published information and opinions.
In the case of this particular article, for instance, I would think that the proper position should be that a person should be able to fax or e-mail it without incurring any trouble from the law, but that he could be ordered to cease and desist should he try to reproduce page after page of the South China Morning Post's Focus section for resale.
James Tien Pei-chun is chairman of the Liberal Party