Digital Copyright and the Parody Exception in Hong Kong: Accommodating the Needs and Interests of Internet Users

Abstract

On 11 July 2013, the Hong Kong government released a consultation document on the treatment of parody under the copyright regime. Building on two earlier consultations on digital copyright reform launched in December 2006 and April 2008, this latest consultation identified three legislative options: (1) clarifying the existing general provisions for criminal sanctions; (2) introducing a specific criminal exemption for parody; and (3) introducing a fair dealing exception for parody. In addition to parodies, these options may cover satires, caricatures, pastiches and other forms of imitations.Commissioned by the Journalism Media Studies Centre of the University of Hong Kong and submitted to the Hong Kong government as part of its consultation exercise, this position paper asserts that none of the three identified options alone can adequately address the needs, interests and concerns of internet users. Each option has its strengths and weaknesses, and each serves its own purpose. Because these options are not mutually exclusive, this paper recommends the adoption of all three options in combination with a fourth unidentified option – an exception for predominantly noncommercial user-generated content (UGC). The last option is badly needed because even a broad, unlimited copyright exception for parody, satire, caricature or pastiche would not cover most of the derivative creations generated by internet users.This position paper begins by examining each individual option identified in the consultation document. It argues that both civil and criminal exceptions, with appropriate qualifications, should be created for parodies, satires, caricatures and pastiches. It also explains why a separate criminal exception will be needed even if a fair dealing exception is to be adopted. The paper then articulates the need for the introduction of a predominantly noncommercial UGC exception, similar to the one Canada recently adopted. It further explains why creating exceptions in the copyright regime would benefit both copyright owners and internet users. The paper concludes by identifying four related issues that deserve legislative attention.