Copyright Law in Hong Kong
Internationally, Hong Kong has been obligated to protect copyright pursuant to various international as well as domestic copyright conventions which apply to Hong Kong. Amongst the importance of intellectual property right, copyright as well has been recognized under Article 15(1) of the International Covenant on Economic, Social and cultural rights (ICESCR) specifying that "The States Parties to the present Covenant recognize the right of everyone… to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author & #8230;" The same provision is found in article 27(2) of the Universal Declaration of Human Rights (UDHR).
On the other hand the freedom of expression has been protected under Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights (BOR). It specifies that "Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and demonstration; and the right and freedom to form and join trade unions, and to strike." According to the BOR Article 16(2), it gives everybody the right to freedom of expression, such as freedom of seeking, receiving as well as imparting information and ideas, regardless of frontiers, which can be orally, in print or writing, in art form, or through whichever media of his or her choice.
The right and freedom of expression is of great importance and there are characteristics that the amended copyright should posses in making sure that this is upheld to the latter. The freedom of expression empowers an individual to express ideas and convey information freely. As to the copyright, it does not grant monopoly of any kind in terms of ideas or information use. (Samuels, Edward, 1989). The only thing it protects is the form of expression of ideas and information that is used by the author. In addition, the use of ideas or information that underlies a work of copyright has not been limited by copyright law.
In connection to this the "Ashdown" Court of Appeal indicated that copyright restriction was never to constitute a significant encroachment on the freedom of expression; and many a times the freedom of expression will be protected sufficiently in case existing right to publish information as well as ideas that have been set out in another's literary work, without using the similar words that have been used by the person in expressing his ideas or conveying information. This gives copyright a valid reason for protecting freedom of expression.
In terms of supporting the exercise of the freedom of expression copyright may have to perform three functions:
a) Offering economic incentive and legal protection to reward original artistic as well as science creation.
b) Providing a stream of income for the creators thus making them to stay independent from government or be it forms of political patronage.
c) Through creation of new copyright works, that will tend to enrich public discourse and encourages dissemination of knowledge, (N. W. Nethanel, 2008).
In maintaining a fair balance the court may apply the "proportionality test" in trite law in finding out if restrictions on fundamental rights not leaving out freedom of expression are lawful. The way it is applied now, put not only the freedom of expression at stake but also the legitimate right and interest of copyright owners at stake, (N. W. Nethanel, 2008). Due to the fact that there exists competing rights, there is need for a fair balance to be struck between freedom of expression with copyright protection especially to those who are seeking to use or communicate the copyright work.
After amendment of copyright Ordinance (Cap. 528), (2009) the general framework of its relevant parts specified that:
a) Ring-fencing the exclusive rights that have been granted to copyright owners through providing particular copyright exceptions in the interest of the public to create a platform whereby doing the acts that is restricted by copyright will never constitute an actionable...
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