Policy Statement & Submission

19 January 2004

Mr Donald Chen
Principal Assistant Secretary for Commerce, Industry & Technology
Level 29, One Pacific Place
88 Queensway, Hong Kong

Dear Mr Chen

Consultation on Copyright (Amendment) Bill 2003

1. Thank you for the opportunity to comment on the Bureau's proposed amendments to the amendments under Clause 4 of the above Bill. We have consulted our members and we wish to present our views, both on the specific questions being asked and generally on the current consultation, as below.

Specific comments

2. We accept the changes proposed. These have clarified some issues relating to "innocent infringement", and will make the application of the Amendment Bill clearer.

3. Indeed, the subject of "casual and innocent infringement" is an ongoing issue of concern, particularly for businesses in the public relations and communications sectors. We have pointed out many times that these behaviour ought not attract criminal liability. To illustrate with some examples:

 - A public relations consultant keeping a copy of the newspaper/magazine clippings relating to his clients for filing, reference and research purposes, which is an act "in the course of business" but not for profit.

 - An advertising agency keeping a tear-sheet of print advertisement placed in newspapers and magazines, and subsequently photo-copying that tear-sheet for record-keeping purpose.

- "Innocent copying" of infringing material may also apply in the course of Internet usage, for example, search engine operators may cache pages, which may happen to contain infringing material, to enable them to be located more easily by their customers in future.

4. Using more precise legal wording will obviously help, but given the countless variations in actual business practices, we are not sure if the perfect wording can be found to encompass all possible situations.

5. Of equal importance, therefore, is the institutional structure to support the balance of interest between copyright holders and users. With the various amendments in the Copyright Ordinance, copyright holders now have a very powerful legal instrument to protect their rights. But this is not matched by an adequate copyright licensing infrastructure. We have already alluded to this point in my previous letter to the Intellectual Property Department on 9 January on the issue of end-user liability.

General comment

6. We would like to draw attention to two issues which have arisen in the course of the consultation on the Copyright Amendment Bill 2003. These relate, respectively, to the subject matter and the manner of consultation.

7. On the subject matter of consultation, we have observed a serious mismatch, in terms of relevance to business, between:

 - On the one hand, the actual substance of the consultation - photocopying and downloading - which most businesses do every day; and

 - On the other hand, the presentation of the subject matter – about amendments to Clause 4 of the Copyright (Amendments) Bill 2003, which is to make permanent the Copyright (Suspension of Amendments) Bill 2001, which is to suspend part of the Intellectual Property (Miscellaneous Amendment) Ordinance, which changed part of the Copyright Ordinance – rendering the consultation irrelevant to the average business person.

8. The latter would be complicated even for seasoned lawyers, and is virtually incomprehensible to the ordinary person. With the variety of changes made over the past years, we believe there is now a need for the government to consider consolidating the copyright legislation into a new and more user-friendly Ordinance.

9. The second aspect relates to the manner of consultation. We commend the government for its open-minded approach with regard to intellectual property legislation. The Chamber has taken all these consultation seriously and responded accordingly - from the consultation on combating intellectual property rights infringement in 1999, to the registration of copyright licensing bodies regulation in 2000, to review of certain provisions of the Copyright Ordinance in 2001, to the various consultation on parallel importation in 2002, and the consultation over reprographic rights mentioned above. Over the past two months, our representatives have attended five meetings on various aspects of intellectual property legislation. Barely a week ago I submitted another response to the related consultation on end-user liability in respect of copyright works.

10. The Chamber is relatively well-versed in IPR legislation and is happy to continue to take part in these consultation, to canvass our members views and to respond diligently. In doing so, our experience is that an important pre-requisite of consultation is communication with end-users, and there is perhaps much room for improvement in this latter aspect. Intellectual Property legislation is often complicated, hence better organisation of the communication and consultation process would certainly help to make the consultation more effective.

I hope you will find the above comments useful.

With best wishes for the new year,

Sincerely
Dr Eden Woon
CEO