Internationally, Hong Kong has been obligated to protect copyright pursuant to various international as well as domestic copyright conventions which apply to Hong Kong. Amongst the importance of intellectual property right, copyright as well has been recognized under Article 15(1) of the International Covenant on Economic, Social and cultural rights (ICESCR) specifying that "The States Parties to the present Covenant recognize the right of everyone… to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author & #8230;" The same provision is found in article 27(2) of the Universal Declaration of Human Rights (UDHR).
On the other hand the freedom of expression has been protected under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights (BOR). It specifies that "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and demonstration; and the right and freedom to form and join trade unions, and to strike." According to the BOR Article 16(2), it gives everybody the right to freedom of expression, such as freedom of seeking, receiving as well as imparting information and ideas, regardless of frontiers, which can be orally, in print or writing, in art form, or through whichever media of his or her choice.
The right and freedom of expression is of great importance and there are characteristics that the amended copyright should posses in making sure that this is upheld to the latter. The freedom of expression empowers an individual to express ideas and convey information freely. As to the copyright, it does not grant monopoly of any kind in terms of ideas or information use. (Samuels, Edward, 1989). The only thing it protects is the form of expression of ideas and information that is used by the author. In addition, the use of ideas or information that underlies a work of copyright has not been limited by copyright law.
In connection to this the "Ashdown" Court of Appeal indicated that copyright restriction was never to constitute a significant encroachment on the freedom of expression; and many a times the freedom of expression will be protected sufficiently in case existing right to publish information as well as ideas that have been set out in another's literary work, without using the similar words that have been used by the person in expressing his ideas or conveying information. This gives copyright a valid reason for protecting freedom of expression.
In terms of supporting the exercise of the freedom of expression copyright may have to perform three functions:
a) Offering economic incentive and legal protection to reward original artistic as well as science creation.
b) Providing a stream of income for the creators thus making them to stay independent from government or be it forms of political patronage.
c) Through creation of new copyright works, that will tend to enrich public discourse and encourages dissemination of knowledge, (N. W. Nethanel, 2008).
In maintaining a fair balance the court may apply the "proportionality test" in trite law in finding out if restrictions on fundamental rights not leaving out freedom of expression are lawful. The way it is applied now, put not only the freedom of expression at stake but also the legitimate right and interest of copyright owners at stake, (N. W. Nethanel, 2008). Due to the fact that there exists competing rights, there is need for a fair balance to be struck between freedom of expression with copyright protection especially to those who are seeking to use or communicate the copyright work.
After amendment of copyright Ordinance (Cap. 528), (2009) the general framework of its relevant parts specified that:
a) Ring-fencing the exclusive rights that have been granted to copyright owners through providing particular copyright exceptions in the interest of the public to create a platform whereby doing the acts that is restricted by copyright will never constitute an actionable infringement -- Division III under Part II of the Ordinance.
b) Defining the exclusive rights of the copyrights owners based on the acts restricted by copyright -- Division I and II under Part II of the Ordinance.
c) Prescription of the remedies through providing the way the right owners and the government may enforce copyright by civil and criminal proceedings -- Division VI under Part II of the Ordinance.
Based on this general framework, Ordinance provision tries to balance the protection of copyright and at the same time it gives way for some acts which would otherwise infringe copyright in the event of serving the public interest at large as well as protecting the freedom of expression of communicators or users of copyright work. While applying the Ordinance to be the starting point, these are the amendments that are related to the new exclusive right of communication as well as the corresponding criminal sanctions that could be of bearing on the freedom of expression.
Exclusive communication right
It is of great importance for introduction of an exclusive right for copyright owners to have opportunity of communicating their works via any mode of electronic transmission towards the public. This is upon consideration that the already existing ordinance recognizes copyright owners' exclusive rights of disseminating their work through certain specific electronic modes of transmission, in addition to the rights of broadcasting a copyright work, adding it within a cable programme service or making it available to the people via wire or wireless as well as on the internet, (Wendy J. Gordon and Robert G. Bone, 1999).
In case of civil claim, the copyright owner should demonstrate that the unauthorized act has infringed his or her right and should do so using a mode that falls under a single or various prescribed categories. Having in mind the pace of development in terms of new modes as well as technologies for content dissemination, is essential to recognize the significance of deciding for a more forward looking approach that makes copyright law technology-neutral. Because of this, copyright owners will be in a position to exploit their works within the digital environment, and it will also be conducive in terms of development of digital content as well as advancement of technology in digital transmission.
This is also affirmed by Article 8 of the World Intellectual Property Organization Copyright Treaty (Geneva, 1996) (WCT) which specifically gives author's as well as artist's works of enjoying the exclusive right of authorizing all kinds of communication to the public of their works, which can either be by wire or wireless, in addition they can make available to the public their works in a manner that makes members of the public to access such works from different place at their choice of time, (Contracting Parties, 2012). These introduced communication rights is consistent with Hong Kong's international obligation of safeguarding this specific right. Some of the common law jurisdictions which tend to be WCT's parties saw the need and as well have introduced a communication right in their copyright laws are: New Zealand in 2008, UK in 2003, Australia 2001 and Singapore in 2005. This move was to make sure that their legislation could keep pace with advances in terms of information technology.
Considering the introduction of the communication rights and relevant overseas experience, the amendments should include modified and new copyright exceptions that generally intend to offer greater flexibility than the still used provisions in the Ordinance, to the education sector, individual users as well as to museums/libraries/archives for them to use digital technology that is capable of advancing study and research, preserving valuable works, giving and receiving instructions as well as disseminating information and knowledge; for these all have a hand towards promoting the free flow of information and the freedom…