Let's stay cool and work together on copyright law for city's future

As a rank outsider with no ax to grind, I have been amazed and disheartened at the anger generated around the copyright bill. This could, though, be an opportunity to develop a dialogue that might serve to increase cross-party cooperation. 

Let's start with a basic principle on which, I trust, we all agree. I think it is fundamentally important to protect intellectual property rights (IPR), including copyright, patents and trademarks, so that Hong Kong can continue to develop as an important center for the production of movies, software and much more. It is also essential to protect freedom of speech, both as a basic principle and as the basis for a vibrant culture. 

If you concur that these objectives are important, then you will also see that it makes sense to develop common agreement on how to achieve them. 

IPR protection is not a left-right issue, like education or taxation. It is part of the institutional framework of a market economy that we accept as the basis of all our work. 

So perhaps, given the level of acrimony in the discussion so far, turning this debate into a consensus-building exercise could produce a model for cooperation in policy formation in other essentially non-controversial areas. For that to happen, we all need to calm down and listen to each other. 

One reason for the disagreements is that there are genuine arguments to be made for and against each amendment. Why not accept that and then agree on common principles to reach a workable and effective compromise? 

Take as an example the amendment on user-generated content (UGC). John Medeiros of the Cable and Satellite Broadcasting Association of Asia made a good case in China Daily last week that making a "blanket exception for UGC" is unwarranted "because the hard work of the employees in the creative sector is easily stolen and spread online under the fictitious guise of being "user-generated". That sounds right to me. 

But so also does the case made by those who fear that not allowing UGC would harm the interests of consumers who change images for their own use without any harm to the original producer of those images, or that such a prohibition would prevent political use of adjusted images by, for example, cartoonists and satirists. 

Once we accept that both sides have a point, we can encourage them to engage in real dialogue to reconcile their positions so that UGC can have its rightful place, not threatening the incomes of content generators, while allowing free speech and reasonable domestic use. Maybe requiring the user to show "sufficient acknowledgment" is too vague and subjective. There must be verifiable, measurable benchmarks as a basis for deciding whether or not UGC harms the interests of content producers. It is up to legislators to do their homework and enunciate their findings, even if that prolongs the legislative process. 

Similarly, there are cogent arguments in favor of the existing "fair dealing" clause, which lists specific areas for unauthorized use of copyrighted materials, such as individual study. Changing to the "fair use" principle, which covers all areas, as in North America, is less certain because there is no relevant body of Hong Kong case law on which to decide cases. But in a rapidly changing world, such a broad-brush approach may be more useful in allowing consideration of unforeseen innovations. 

One solution could be to broaden the "fair dealing" clause to cover other areas. Alternatively, Hong Kong could switch to "fair use" while adding a proviso that individual cases should be judged on the basis of case law in the US and Canada until such time as there is a solid foundation of local judgments. 

So let's look now at the "override provision". This clause is intended to prevent companies from concluding employment contracts that override such exceptions to copyright as caricature, parody and pastiche. I see no objection to restricting such overrides, but realize that this is an experimental approach - so far, only being tried in the UK - that will need to be tested in practice. 

Indeed, such is the uncertainty on the part of some major stakeholders surrounding these measures that it makes sense for legislation explicitly to incorporate the possibility of revision after an experimental period of, say, five years, rather than attempt to write it in stone. 

And this really could be an opportunity to start working together on complex policy decisions in a more constructive, open-minded, tolerant and evidence-based way that would produce more effective legislation and start the long process of rebuilding public trust in the political process. Given the low regard in which politicians are held nowadays, this can't happen too soon.