Government consults on treatment of parodies

Altering existing photographs or film posters with pictures of political figure and rewriting the lyrics of existing songs have become two of the most popular ways for Hong Kong internet users to comment on current events. Parody, which was not addressed by the Copyright (Amendment) Bill 2011, has now become an issue for public consultation. In July 2013 the government issued a consultation paper seeking public views on how the copyright regime should deal with parody appropriately.

When it was first introduced into the Legislative Council, the bill proposed, among other things, to criminalise the act of distributing an infringing copy of a work (other than for the purpose of or in the course of any trade or business which consists of dealing in infringing copies of copyright works) or communicating an infringing copy of the work to the public (other than for the purpose of or in the course of any trade or business that consists of communicating works to the public for profit or reward) to such an extent as to affect the copyright owner prejudicially. While it was the government's intention to keep the copyright law in line with the rapid development of the knowledge-based economy, the bill provoked opposition from internet users who were concerned that the amendments could be used as a means to control freedom of expression. In mid-2012 the Legislative Council suspended further consideration of the bill for a number of reasons.

In order to strike a balance between copyright protection and freedom of expression the government is now seeking the views of the public on the following issues before re-introducing the bill before the Legislative Council for further consideration:

• Under the present copyright law, parodies that only incorporate an idea, reproduce an insubstantial part of the underlying work or reproduce a substantial part of the underlying work which falls into the public domain or with the consent of the copyright owner do not constitute copyright infringement. Further, parodies that fall within the permitted acts of the Copyright Ordinance are seen as non-infringing. Views are sought on whether this status quo should be maintained or whether the application of the criminal penalty of copyright infringement should be clarified in view of the existing use of parody.
• Whether a new criminal exemption or fair-dealing exception for parody or other similar purposes should be introduced into the Copyright Ordinance.
• If a new criminal exemption or fair-dealing exception for parody is to be introduced, what the scope of and the qualifying conditions or limitations for exemption or exception should be.
• Whether moral rights for authors and directors should be maintained notwithstanding any special treatment of parody in the copyright regime.

The consultation exercise will last for three months, and the government will then take a policy view on how parody should be treated.