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[Rebecca MacKinnon <rebecca.mackinnon AT mac.com>]

Thursday, May 10, 2007

The digital divide

PETER YU

Last week, the government concluded its consultation on copyright protection in the digital environment. While the issues were straightforward and expected, the document failed to ask the most important question: How should we shape the digital future of Hong Kong?

The consultation stemmed from challenges created by the internet and new communications technologies. By cutting the speed and cost of reproduction and distribution, digital technologies have resulted in widespread unauthorised uploading and downloading of copyrighted music, movies and software on the internet.

Claiming considerable losses from digital piracy, the content industries have lobbied heavily for stronger copyright protection. The measures proposed in the consultation paper included criminalisation of unauthorised uploading and downloading of copyrighted works, limits of secondary liability for internet service providers and disclosure of internet users' personal information to help bring copyright infringement actions.

Although these proposals seem technical, they touch on key issues that affect everybody in Hong Kong. Should we turn into criminals the future pillars of our society? Should we slow development of internet services to protect creators of digital content? Should we sacrifice privacy, free speech and a free press in the name of copyright protection?

While the copyright holders' concerns are understandable, some of the medicine prescribed in the paper is, unfortunately, worse than the diseases it claims exist.

Criminalising individual, non-commercial behaviour is not only unfair and unreasonable, it ignores the elusive boundaries of copyright. It is not uncommon for courts to spend a considerable amount of time, effort and resources to determine whether copyright infringement has occurred.

The copyright law is also filled with numerous limits and exceptions, such as the originality requirement and the fair dealing privilege.

Even more problematic, copyright holders cannot tell with certainty whether a particular website or an online service is legal until they have reviewed the many complex, legal clauses found in their contracts. Although it is assumed that record or movie producers hold exclusive rights to their works, it is not always the case. Other creative artists and seemingly illegitimate businesses may have negotiated for nonexclusive licences, while the producers may have failed to clear the needed rights. The affected copyrighted works may also have been bundled with public domain materials that are free for others to use and copy.

Under these circumstances, it is grossly unfair to put the burden on individual users to determine whether their action would be subject to criminal penalties. Even worse, if they are so concerned about the penalties that they refrain from using copyrighted works for creative, educational or research purposes, the damage to society is likely to be very significant.

The other proposals are equally troublesome. The requirement that internet service providers remove or disable access to infringing materials after a mere allegation of copyright infringement raises serious issues about free speech and a free press. What if the complaining copyright holders were wrong? There is also serious intrusion of privacy when these providers disclose personal information without the internet users' authorisation.

In fact, without the needed safeguards, these requirements are likely to be abused. As has been shown in the US and other countries, similar legislation has been misused by individuals and businesses to stifle competition and silence critics. Because anybody who has written an e-mail or has taken a photograph can be a copyright holder, the disclosure requirement is open to exploitation by pornographers, cyberstalkers, batterers, paedophiles or other social deviants.

There is a tendency for legislatures to introduce laws to respond to new technological challenges. This is true not only for Hong Kong, but also other jurisdictions.

However, legislative solutions are not the only answers - or even the best. There are other, non-legislative, proposals that may be more in line with the needs, interests and goals of Hong Kong.

There are also important safeguards that need to be written into the proposed legislation.

If Hong Kong is to further develop its knowledge-based economy and to become a regional hub for digital technology, it needs to seriously evaluate both the opportunities and challenges created by the internet and new communications technologies. By taking seriously these opportunities, and challenges, Hong Kong may set an example for other places struggling with similar copyright-related issues.

Peter K. Yu is the author of a position paper on digital copyright reform submitted to the government by the Journalism and Media Studies Centre of the University of Hong Kong. 

Rebecca MacKinnon

Assistant Professor, Journalism & Media Studies Ctr.

University of Hong Kong   (http://jmsc.hku.hk)

email: rmack AT hku.hk

blog: www.RConversation.com

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