Copyright and Freedom of Expression in Hong Kong Law

Introduction

Internationally, Hong Kong has been obligated to protect copyright pursuant to various international and domestic copyright conventions that apply to it. Among the most important intellectual property rights, copyright has been recognized under Article 15(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which specifies 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." The same provision is found in Article 27(2) of the Universal Declaration of Human Rights (UDHR).

On the other hand, freedom of expression has been protected under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights (BOR). These provisions specify 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 BOR Article 16(2), everyone has the right to freedom of expression, including freedom to seek, receive, and impart information and ideas regardless of frontiers, whether orally, in print or writing, in art form, or through any media of their choice.

The right and freedom of expression is of great importance, and there are characteristics that any amended copyright framework should possess in order to ensure this right is fully upheld. Freedom of expression empowers an individual to express ideas and convey information freely. Copyright, for its part, does not grant a monopoly of any kind over ideas or information itself (Samuels, Edward, 1989). What it protects is only the form of expression of those ideas and information as used by the author. In addition, copyright law does not limit the use of the underlying ideas or information in a copyrighted work.

In connection with this, the Ashdown Court of Appeal indicated that copyright restriction was never intended to constitute a significant encroachment on freedom of expression, and that in many cases freedom of expression will be sufficiently protected by the existing right to publish the information and ideas set out in another's literary work, without using the same words the author used to express those ideas or convey that information. This gives copyright a valid basis for protecting, rather than undermining, freedom of expression.

In terms of supporting the exercise of freedom of expression, copyright may perform three functions:

(a) Offering economic incentives and legal protection to reward original artistic and scientific creation.

(b) Providing a stream of income for creators, thereby enabling them to remain independent from government or other forms of political patronage.

(c) Through the creation of new copyright works, enriching public discourse and encouraging the dissemination of knowledge (N. W. Nethanel, 2008).

In maintaining a fair balance, the court may apply the proportionality test to determine whether restrictions on fundamental rights — including freedom of expression — are lawful. As currently applied, this test places at stake not only freedom of expression but also the legitimate rights and interests of copyright owners (N. W. Nethanel, 2008). Because competing rights are involved, a fair balance must be struck between freedom of expression and copyright protection, particularly for those seeking to use or communicate copyrighted works.

After amendment of the Copyright Ordinance (Cap. 528) (2009), the general framework of its relevant parts specified that:

(a) Ring-fencing the exclusive rights granted to copyright owners by providing particular copyright exceptions in the public interest, creating a platform whereby acts restricted by copyright will not constitute actionable infringement — Division III under Part II of the Ordinance.

Exclusive Communication Right

(b) Defining the exclusive rights of copyright owners based on the acts restricted by copyright — Divisions I and II under Part II of the Ordinance.

(c) Prescribing remedies by providing the means through which rights owners and the government may enforce copyright through civil and criminal proceedings — Division VI under Part II of the Ordinance.

Based on this general framework, the Ordinance attempts to balance copyright protection while permitting certain acts that would otherwise infringe copyright when those acts serve the broader public interest and protect the freedom of expression of those who communicate or use copyrighted works. The amendments most relevant to this balance concern the new exclusive right of communication and the corresponding criminal sanctions that may bear on freedom of expression.

It is of great importance to introduce an exclusive right for copyright owners to communicate their works to the public via any mode of electronic transmission. The existing Ordinance already recognizes copyright owners' exclusive rights to disseminate their work through certain specified electronic modes of transmission, including the rights to broadcast a copyright work, to include it within a cable programme service, or to make it available to the public via wire or wireless means, including over the internet (Wendy J. Gordon and Robert G. Bone, 1999).

In a civil claim, the copyright owner must demonstrate that the unauthorized act infringed their right and that it did so through a mode falling within one or more prescribed categories. Given the rapid pace of development of new modes and technologies for content dissemination, it is essential to recognize the significance of adopting a more forward-looking approach that makes copyright law technology-neutral. This would enable copyright owners to exploit their works within the digital environment and would also be conducive to the development of digital content and the advancement of digital transmission technology.

This approach is affirmed by Article 8 of the WIPO Copyright Treaty (Geneva, 1996) (WCT), which specifically grants authors and artists the exclusive right to authorize any communication of their works to the public, whether by wire or wireless means, and to make their works available to the public in a manner that allows members of the public to access such works from a place and at a time of their own choosing (Contracting Parties, 2012). The communication rights introduced are consistent with Hong Kong's international obligation to safeguard this specific right. Several common law jurisdictions that are parties to the WCT have also introduced a communication right in their copyright laws: New Zealand in 2008, the UK in 2003, Australia in 2001, and Singapore in 2005. This move was intended to ensure that their legislation kept pace with advances in information technology.

Conclusion

To ensure that rights and freedom of expression are protected, the proposed amendments will, in addition to providing civil remedies, introduce corresponding criminal sanctions against those who are guilty of unauthorized communication of copyright works to the public where such communication is conducted in the course of a business, for profit or reward, or has prejudicially affected the copyright owner.