Jacob Schindler

In the face of a sustained filibuster by pan-democratic lawmakers, Hong Kong’s government is set to pull a controversial amendment to the special administrative region’s Copyright Ordinance. Civic Party legislator Claudia Mo tells World Trademark Review that the bill will not be formally withdrawn until Wednesday, but we understand the legislation is effectively dead.

The bill has been at the centre of a political firestorm for months, as activists warned that authorities could enforce the law selectively to stifle freedom of expression online. While experts say that the shelved update provided stronger free speech protections than the existing law, officials were not able to convince opposition lawmakers to allow a vote on the bill. The success with which the pan-democratic lawmakers have linked IP protection with possible repression in the city’s turbulent political climate could cause concern among IP stakeholders in a jurisdiction that is central to combatting the flow of pirated and counterfeit goods out of China.

The government had previously said it would set the bill aside if not passed this week. The introduction of the Copyright (Amendment) Bill 2014 followed eight years of preparation and public consultation, and Secretary for Commerce and Economic Development, Gregory So, was unable to hide his disappointment that it now looks unlikely to pass in the foreseeable future; in recent days he has blasted pan democrats for “murdering” the amendment, and on the floor of the Legislative Council today he said: “Remember these people. Remember them one by one. It’s them who are the culprits.”

Dr Danny Friedmann, a research associate at the Faculty of Law, Chinese University of Hong Kong, tells World Trademark Review that the proposed amendments actually contained stronger free speech protections than the Copyright Ordinance currently in force, which means the defeat of the bill could be seen as a setback for free expression in Hong Kong. As Friedmann pointed out in a South China Morning Post piece last December, the amendments included broad “fair dealing” exceptions which would have carved out exemptions from civil and criminal liability for copyright infringement in circumstances including parody, satire, caricature, pastiche and commenting on current events. None of these exemptions are specified in the present law.

Opponents of the bill, however, pressed for additional protections. Groups including NGO Keyboard Frontline and the Progressive Lawyers’ Group pushed for a “limited fair use” clause and exceptions for non-commercial user-generated content. Last-minute attempts to forge a compromise in four-sided discussions between netizens, officials, lawmakers and rights owners failed to produce accord. But Friedmann notes that many of the opposition’s concerns come down to implementation rather than the text of the law itself, and in the city’s common law judicial system, “up to this point, the courts have generally interpreted questions of free expression and fair use quite generously”.

Reaction to the copyright bill was visceral given the city’s tense political climate, in which many on the pan-democratic side say freedoms enshrined in Hong Kong’s mini-constitution, the Basic Law, are being eroded. That probably accounts for why opposition to the amendment took forms more extreme than we are used to seeing in the course of debate over IP policy. In November 2014, after rumours spread that the copyright bill would be pushed through imminently, a crowd of protestors attempted to break into the legislative complex by smashing through a window with an iron barricade. Six protestors were arrested and three police officers injured.

In Friedmann’s view, though, while opponents to the bill may have been “misinformed or misguided”, the government shares some of the blame for failing to effectively counter opposing arguments. In a PR coup, the opponents were able to link the copyright bill to Article 23, a proposed anti-subversion law that was shelved indefinitely in 2003 after huge public outcry. As a result, many of the mainstream news articles about the bill over the past two years have referred to it with the shorthand name ‘Internet Article 23’. Meanwhile, as Friedmann pointed out on his blog IP Dragon, the government has pressed its case by taking out advertisements in newspapers, a strategy he says borders on “desperate”.

Hong Kong’s Trademark Ordinance does not include any parody, satire or criticism exceptions, but infringement generally requires “use in the course of trade or business”, leaving room for non-commercial parody. Some prominent brands have found their logos or products featured in political speech in the past. An Ikea stuffed animal whose transliterated Chinese name sounded like a profanity became a symbol of protest when a protestor hurled one at Hong Kong chief executive CY Leung in 2013. The Swedish company subsequently gave the product a new Chinese name. Another example can be found on Keyboard Frontline’s Facebook page, which is headlined by an image of Gregory So with Pikachu ears labeled “Pokaimon” (pokai sounds like a Cantonese expression most politely translated as ‘drop dead’). 

For trademark owners, Hong Kong is a critical jurisdiction – given the volume of fake goods made in China which flow through its port, the city cannot be ignored. But “the government’s capacity to legislate IP matters has been greatly harmed” by the battle over the copyright amendment, says Friedmann. Working with customs and other government organs is important, but rights holders also benefit if the public is on board with the fight against fake goods. The fact that the government has failed to make an effective case for this bill – and that a segment of the population now associates it with political repression – is in that sense a negative for all IP stakeholders. 

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