Digital Content and Copyright– A User's View

Charles MokChairman

Internet Society Hong Kong

@ IIC Hong Kong Telecommunications and Media Forum

June 10 2010

A perspective of today's digital environment

Web 2.0 means... User-created/generated content Sharing culture Free content

Users are pro-sumers Rethinking on what drives creativity

Remix, reuse What dominates? Mainstream, commercialized

content, or the long tail of content? Is copyright protection the only way to go?

Hong Kong government's digital copyright consultation

Strengthening Copyright Protection in the Digital Environment' Consultation paper: December 2006 'For sustainable development of creative industries' Balancing with:

Dissemination of information Safeguarding personal privacy on the Internet Developing Hong Kong as a Internet service hub

Preliminary proposals (2007)

April 2008: Preliminary proposals Introduce a right of communications covering all

modes of electronic transmission for copyright works, with related criminal sanctions against the breach of this right Where communication is made for the purpose or in the

course of business Otherwise, if communication is made by 'streaming'

Introduce a copyright exemption for temporary reproduction of copyright works by online service provider (OSPs), e.g. caching

Preliminary proposals (2007)

Facilitate to draw up a voluntary code of practice for OSPs in combating infringements, the compliance with which or otherwise will be prescribed in law as a factor for the court to take into account Setting up a Tripartite Forum (of OSPs, copyright

owners and users) to explore various systems (e.g. notice and notice, notice and takedown etc.)

Continue to rely on the 'Norwich Pharmacal' principles, as opposed to introducing an alternative infringer identity disclosure mechanism that is not subject to scrutiny by the court

Preliminary proposals (2007)

Describe in law additional factors to assist the court in considering the award of additional damages, instead of introducing statutory damages

Refrain from introducing new criminal liability pertaining to unauthorized downloading and P2P

Introducing the new issue of Media Shifting

Tripartite Forum

Original task was to draw up a voluntary code of practice for OSPs Notice and notice? Notice and takedown? Or ?

Dilemma: From copyright owners' point of view: more

protection, faster speed of response, etc. sought From OSPs point of view: an MOU does not provide

legal safe harbour, hence no incentive Users' rights: left out?

Current proposals (2010)

Recognize copyright owners' right to communicate their works through any mode of electronic transmission, with criminal sanctions against infringement: In the course of business conducted for profit Where made to such an extent as to affect

prejudicially the copyright owners Reference to 'streaming' is dropped

Current proposals (2010)

Introduce statutory limitation of liability regime for OSPs in dealing with online piracy Underpinned by a code of practice based on notice

and notice / notice and takedown 'No' to graduated response

Introduce a copyright exemption for temporary reproduction of copyright works by OSPs

Prescribing additional factors for considering the award of additional damages

Current proposals (2010)

Introduce media shifting exemption for sound recordings

'No' to: Alternative to 'Norwich Pharmacal' Statutory damages New criminal liabilities to P2P

Bill to Legislative Council in late 2010

Reactions to proposals: Is a balance reached?

Copyright owners want graduated response Users are concerned about criminal liabilities

Unclear as to what may constitute infringement Impact on remix or reuse of content including for

political parody – 'chilling effect'? OSPs

Definition of OSPs? How to enforce?

Public: Takes too long? Behind the curve of technology?

What's next? Government's delicate role to balance Copyright owners' demands Striking a balance Education and awareness

Protecting copyright Creative Commons User's rights

Copyright's relationship with creativity Economic and social perspectives/impacts

莫乃光 Charles Mok

mok@hknet.com

http://www.charlesmok.hk

http://www.isoc.hk