Government moves to strengthen copyright protection in the digital environment

The government has sought public opinion on preliminary proposals to strengthen copyright protection in the digital environment. The proposals were drafted after analysing over 600 submissions received during a public consultation in 2007, as well as considering experiences and developments in various other jurisdictions, including Australia, Korea, Singapore, the United Kingdom and the United States.

The proposals include: 

• moving from the current authorised transmission mode to an all-encompassing right of communication, which could cover future developments in electronic transmissions in order to allow copyright owners to exploit their works in the digital environment; 
• introducing criminal penalties against acts of initiating unauthorised communication with the public where the communication is made for the purpose or in the course of business, or otherwise where the communication is made by streaming to such an extent as to affect the rights of the copyright owner negatively; 
• providing a new exemption for temporary reproductions of copyrighted works by online service providers which are technically required for the efficient transmission of information; 
• drawing up a compliance code of practice for online service providers to combat internet piracy and amending the copyright law such that non-compliance with the code would be considered by the court in determining whether an online service provider authorised the infringing activities committed through its service platform; 
• laying down additional factors to be taken into account by the court in awarding additional damages, including: 
  • the conduct of the defendant after the infringing act; 
  • the extent of infringement; and 
  • the need to deter similar infringing activities in the future; and 
• providing exemptions for media or format shifting (ie, the copying of a genuine copyright work from one medium to another) for personal and private use to facilitate reasonable use of copyrighted works.

The government also stated that at this stage it would not favour the introduction of an alternative infringer identity disclosure mechanism that would not be subject to the court’s scrutiny, but would prefer to rely on the existing Norwich Pharmacal principle for obtaining disclosure. Further, the existing criminal penalty for the distribution of infringing copies on the Internet should be maintained instead of extending criminal liability to cover unauthorised downloading and peer-to-peer file-sharing activities.