Consultation launched on further exemptions for circumventing TPMs

The Hong Kong government has launched a consultation paper seeking views from interested parties – including copyright owners, educational institutions, industry representatives and members of the public – on additional exemptions from the liabilities that apply to the circumvention of technological protection measures (TPMs) under the Copyright (Amendment) Ordinance 2007.

The ordinance sets out enhanced protection for TPMs, which are used to safeguard copyrighted works. It establishes that any person who attempts to circumvent a TPM applied to a copyrighted work or performance will be subject to civil liability. However, in order not to hinder the development of technology and to ensure that legitimate activities can still be carried out, the ordinance also sets out specific exceptions. These allow TPMs to be circumvented in special circumstances (eg, for law enforcement or archival purposes).

The government saw the need to introduce further exemptions to supplement those already set out in the ordinance. As a result, it is now seeking public views on whether to include additional exemptions - in particular, exemptions similar to those adopted or considered by other jurisdictions, including Australia, Singapore and the United States. It has been proposed that further exemptions should be limited to the act of circumvention itself and not be extended to persons who deal in circumvention devices or provide circumvention services. In addition, these exemptions should be subject to the following principles:

• the TPM in question should either be an access control or copy control measure;
• it is the prohibition brought by the ordinance that has resulted in the user being unable to use or deal with the copyrighted work;
• the intended use or dealing with the copyright work would not lead to its infringement; and
• any exemption should be narrow in scope in order to minimise the risk of abuse.