Palmerston attended the Internet Society of Hong Kong’s forum on the Government’s “Proposals for Strengthening Copyright Protection in the Digital Environment” on the 28th. The views expressed below are not to be taken as any sort of formal legal analysis or advice, nor do they reflect the views of the profession in general.

The wrangle over copyright reform in the digital era has played out many times in many different jurisdictions, and the ISHK forum on the 28th followed largely predictable lines.

The event began with an attempt at outlining the Government’s proposals by a representative of NetMission.asia who was also a HKUST undergraduate [i.e. not a Law undergraduate or a legally qualified person]. Perhaps not surprisingly, a few key details of the proposals were lost in translation.

Excursus: The proposals are as follows:-

• Criminal penalties for persons who initiate unauthorised communication of copyrighted works to the public where it is made to such an extent as to affect prejudicially the copyright owners;
• “Safe harbour” provisions for online service providers, along with a voluntary Code of Practice (which includes “Notice and Notice” and “Notice and Takedown” provisions);
• A caching exemption;
• The statutory definition of factors relevant to the assessment of damages for infringement of copyright; and
• A format-shifting exemption for sound recordings (subject to anticircumvention provisions).

The panelists were introduced after the legislative briefing - representatives from the Government, the music and film industries, the Internet Service Providers’ Association, a major local solicitors’ firm, an Internet forum proprietor, a Creative Commons representative (and HKU academic) and an academic from the Baptist University.

The Government representative spoke first, in an attempt to clear up the confusion caused by the legislative briefing. This was only partially successful - tepid assurances that “Streaming will never be illegal” and that, although many forms of copying are currently illegal, “Currently [content owners] can sue - but they won’t bother to” simply did not cut the mustard.

Then came Big Content.

The music industry’s representative spoke first. After setting out his background, he made the only two sensible remarks from Big Content all evening:

• If the HK legislation does not reflect international practice, any protection afforded in HK will not be recognised overseas; and
• If the Government had genuinely wanted to regulate this field, they would have done so by now.

Unfortunately, the music maker then segued into his vision of the future (but not before gratuitously disparaging the post-80s generation) - a central hub to control all content, combined with digital rights management, laws and self-regulation by online service providers.

(For reasons Cory Doctorow has made abundantly clear, DRM does not - and will never - work.)

The film industry representative’s speech was scarcely better. After stressing that civil infringement claims result in Pyrrhic victories due to the issue of costs, he reiterated the industry’s support for “graduated response” and stressed that the authors should be contacted before public performances of works are made. He made no attempt to address questions of collective punishment (or infringement by Wi-Fi leechers), nor did he consider how end-users could possibly be expected to contact collecting societies in advance (or how they would be taught to do so).

The ISP representative spoke of his industry’s need to respect both content and users and described ISPs as merely pipes. Starting from that proposition, he went on to say that ISPs cannot verify content and therefore need safe harbour rules.

(Only partly true - Deep Packet Inspection does exist, even if it doesn’t work.)

The solicitor, perhaps not surprisingly, did not make any controversial statements to avoid scaring off clients. She made the following points:

• Whatever the outcome, the law has to be clear;
• A similar previous debate occurred with parallel imports;
• “Know your rights. Infringement is bad.”
• (Palmerston’s notes: “Feed your children. Bury your dead.”)
• We need a simpler, less costly regime;
• The Civil Justice Reforms will conserve time and costs.
• (Palmerston’s notes: A popular misconception, this - but they said that about Equity, too, once upon a time…)

The forum proprietor stressed the concern over criminal penalties and the collaborative nature of Internet content. Unfortunately his lack of familiarity with the proposals and indiscriminate use of words like “Internet crime” prompted a return salvo from Big Content and from Government which contributed little to the proceedings.

The academics spoke last, and (disappointingly) did not take the opportunity to rock the boat. The CCHK representative stressed that end-users already have plenty of exemptions available to them, and that users should be made aware of them. Likewise the HKBU academic spoke about end-user education. However, neither of them talked about the elephant in the room: if the law is an ass, what good is education?

In summary, then, what was actually said at the forum was nothing new at all. The Government proposals, while avoiding some of the most obvious pitfalls of overseas legislation, remain sufficiently half-baked to be alarming.

But the single most dispiriting aspect of this forum was the attitude of the representatives from Big Content and from Government. It was obvious from their demeanour that the music and film industry representatives had absolutely no interest in being there, or in listening to what any of the panelists or members of the audience had to say. Most tellingly, perhaps, before the forum commenced, all of the panelists were engaged in rapt conversation - all of them, that is, apart from the CCHK representative. A perfect metaphor, perhaps, for Governmental copyright policy.

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