The HKSAR government proposes to amend the existing copyright ordinance (Cap 528) by introducing the Copyright (Amendment) Bill 2011 (the “Bill”). Should the Bill be passed, it shall have an immense impact on the freedom of publication and speech, suppressing the voice of the public. The Bill causes suspicion of carving out the Article 23 to be legislated. We must stand up and say no to this vicious law. The followings are the impacts of the Bill:
A. Refusal of including the derivative work in the ambit of fair dealings
The HKSAR government refused to include derivative works in the ambit of the fair dealings and claimed that the consultation in this regard with the public shall be conducted after passing the bill. However, once this vicious bill is passed, derivative works shall be forbidden. Even if derivative works were to be immune in future, the prevalence and popularity of recreating works of others now would not be able to turn the clock back to its prime time.
B. Passing the Bill is equal to forbidding all the activities in the cyber world
The scope of the criminal liability of the Bill is extended to “all forms of electronic transmission” and “distributing” is amended to “communicating to the public”. It means that “uploading to the Internet” or “transmitting via the mobile” shall attract criminal prosecution. This is no difference from forbidding all sharing activities on the Internet.
C. HKSAR government may by-pass the owner of the copyright to prosecute the person who distributes his derivative work or share the work of others on the internet
Though HKSAR government said they would not take the initiative to prosecute, the enforcing authority may still circumvent the owner and initiate prosecution on behalf of the owner against the re-creator of the derivative work and people who share work of others on the grounds of infringing the rights of the original owner. It shall be the start of the trend of literary persecution.
D. Netizens may face the difficulty of exposing the identity and privacy of others or be punished as a criminal associates
If a netizen is using the Internet social platforms with message-posting function, for example Facebook, Plurk, Twitter, Weibo, blogs or forums without leaving his own name and contacts (including telephone, address or email), he might bear the same criminal culpability as the person who makes the infringing copyrighted work available to the public on his Internet social platforms. This vicious law forces all netizens to expose their own identities or to face the same criminal liability of the distributor.
E. Refusal to supervise the copyrights licensing bodies makes derivative works become subject to the game of “Monopoly”
The Government has never done anything to supervise or regulate the behaviour of the copyrights licensing bodies. Users and owners of the copyrights are facing the same unfair and unreasonable treatment as to the fees to be paid to the licensing bodies, even the owners themselves are under restrictions of using their own works. However, this situation has not been dealt with in the Bill. Derivatives works, therefore, become the subject of the monopoly game of the licensing bodies.
F. Lack of protection to the open typed copyrighted work
The HKSAR government and the Bill provide no protection to the open typed copyright work, such as the Creative Commons and General Public Licence etc. If the copyright licensing bodies initiate prosecution against others for illegal distribution and do not accept the value of the creative commons, the rights of the copyright owners would not be fully protected. However, nothing is mentioned in the Bill in this regard.
G. Continually regulating objects to derogatory treatment of work kills the creativity and freedom of speech
Under the current copyright laws, the objects to derogatory treatment of work are regulated. It is an offence if there is any addition to, deletion from or alteration to or adaptation of the work and the treatment of the work is derogatory and amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director. The essence of the derivative work is to alter the original work to become a new creation of work. In such case, all the derivative work would be regarded as work infringing the copyright of the original author. This cannot be the intention of the Bill to kill the creativity and freedom of speech.
Therefore, we demand:
● Exempt all derivative works and enlist them as “Fair Dealings”;
● Limit the criminal prosecution to cases with serious economic loss and define clearly what is “incalculable potential business value” to avoid abuse of power by the enforcing authority.
● Delete all entitlement to non-physical loss, especially losses to derogatory treatment of work to prevent the laws to be exploited as a tool of suppression of ideas;
● Delete requirements of the service providers to disclose personal private data of users and the criminal liability of failing to do so under the Bill;
● Mend the existing loopholes by regulating and supervising the copyrights licensing bodies with clearer and stricter laws; and
● Correct the imbalance of the protection to various copyrights under the current laws and provide protection not only to closed typed authorisation and commercial licence but also to the open typed authorisation.
如果網民有facebook、plurk、twitter、微博、blog、 forum等有留言功能的網上平台帳號，若不在界面留下自己的姓 名和聯絡資料（包括電話、地址及電郵），而其他人又在此網民的網上平台上發表侵權物品，此網民也會受牽連，與侵權者同罪！此惡法逼所有網民面對公開私隱或承受連坐風險的兩難！
在 現行版權條例中有所謂「貶損處理」的規管，即如作品經增加、刪除、修改或改編後受歪曲或殘缺不全，或在其他方面損害作者或導演的榮譽或聲譽，已屬侵權行 為。而二次創作正正是把原作改編變成另一作品，若站在另一角度看，不正正是會被指為所謂的侵權物品嗎?! 如此扼殺創作和言論自由，是一條原本應為保護創作 人而設的法例該做的嗎？
- 立即把 「二次創作」列作公平處理的豁免範圍；
- 應將刑事檢控限制於嚴重經 濟損失的事件，列明「不可計算潛在的商業價值」，避免執法機關權力過大；
- 取消對其他無形損失，尤其所謂「貶損處理」的規管， 以免成爲意識形態的打壓工具；