Thoughts on online copyright in Hong Kong

Since some forums don’t seem to appreciate any discussions which require more than a sentence or two, I’ll put here some thoughts on the current discussions on Copyright in Hong Kong, particularly as it relates to the internet and issues raised by the Edison Chen photo affair.

One “Dragonball” commented in HKExpats:

I’m still a wee bit concerned that posting a Youtube link could be copyright infringement.

It seems to me that this depends on the legal interpretation of this section (s.26) of the Copyright Ordinance:

COPYRIGHT ORDINANCE
Section: 26
Heading: Infringement by making available of copies to the public
Version Date: 30/06/1997

(1) The making available of copies of the work to the public is an act restricted by copyright in every description of copyright work.
(2) References in this Part to the making available of copies of a work to the public are to the making available of copies of the work, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the work from a place and at a time individually chosen by them (such as the making available of copies of works through the service commonly known as the INTERNET).
(3) References in this Part to the making available of copies of a work to the public include the making available of the original.
(4) The mere provision of physical facilities for enabling the making available of copies of works to the public does not of itself constitute an act of making available of copies of works to the public.

If posting a link to the pictures or to a site itself containing links to the pictures is deemed contrary to this section then links to copyright material on Youtube and a very significant part of the internet in its entirety become illegal under Hong Kong law. Which would then be so laughably in disrepute that any claims to be a “World City” would be even more completely blown away.

To me it is quite obvious that the “making available” in this law should refer only to the uploading and hosting of the actual copies of the material in question, not to anyone uploading or hosting links to such material. Anything other interpretation would be so totally at odds with the way the internet works as to make the law completely ludicrous.

Moreover, as I read it, HKExpats.com is merely providing physical facilities to enable the posting of links, so even if the links themselves are deemed in breach of copyright then HKExpats is in the clear because of clause (4) above. So quite why the admins of HKExpats are running scared baffles me – unless the guys with the choppers have threatened them.

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12 Responses to Thoughts on online copyright in Hong Kong

  1. Beer guy says:

    Where are EDC photos and videos ?

    The whole purpose of this blog was to exchange photos of hairy bush and tiny cock ? Wasnt it ?

  2. smog says:

    No it wasn’t – the point was to enable me to be able to sound off at length without boring readers of HKExpats and other places who weren’t interested in the things I am interested in.

    There are plenty of copies of EDC pictures available out there if you Google. Within the next day or two I will, however, upload my more extended thoughts on copyright as it pertains to the internet, which may or may not include example links of interest to you. šŸ™‚

  3. Tinybear says:

    “References in this Part to the making available of copies of a work to the public are to the making available of copies of the work, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the work from a place and at a time individually chosen by them (such as the making available of copies of works through the service commonly known as the INTERNET)”.

    Is this wording not wide enough to cover posting a link on the internet which leads to copyright material?

  4. smog says:

    I don’t think so. It seems to me that “making available” a copy requires two things:
    1) putting a physical copy (i.e. the bytes of data) somewhere accessible
    2) publicly posting instructions on how to access that copy (e.g. a URL)

    Clearly 1) alone is not sufficient since many people store copyright or private data on the internet in places that are either access-protected or simply “secret” in that if no-one posts a link to the file then no-one will know it is there. I guess if you name the file in a way that describes the content and put it in a place that search engines will find it then you could argue you have made it available. But simply uploading a file with a non-descriptive name to an online site, it seems to me “making available” since there is no reasonable expectation that anyone would find it by chance. Many people upload personal copyrighted files in this way for backup purposes.

    But I also feel that 2) alone is not sufficient. If it were then by analogy with the “real” world then the statement “if you go to shop #123 at Shenzhen Shopping Centre you can buy a copy of pirated material” would also be breach of copyright, and that is clearly ridiculous.

    As I see it, for this clause to be compatible with reality, it must be necessary to do 1) and 2) to constitute “making available”.

  5. Tinybear says:

    I see your point. So, by merely drawing attention to where the copyright material is available doesn’t constitute MAKING available. The person who made it available is the person who actually put it there.

    Hmmm…interesting. Let’s hope the courts see it the same way.

  6. LT says:

    I’m interested in how the courts handle it – if it ever gets to that.

    My understanding of these issues isn’t great but if you knew something was copyrighted and that the rights of copy had been exercised is it still correct to link to the content? To explicitly provide the address, the directions and the signposts to get to it?

    It’s like saying ‘Over there is the stolen manuscript – if you want you can read it and you can tell other people to read it if you wish – what you do with it is no concern of mine’. Or is it like a shop selling a pirated DVD; ‘We are selling a disc – what happens to be on that disc and what you do with that disc I do not care about, sure the picture on the front shows the latest Hollywood blockbuster but who knows eh?’

    I dunno – I think if it hasn’t been decided by law then it is time it is.

  7. Tinybear says:

    Well, it’s just like saying: I know that the people featured in Edison’s album of photos wouldn’t want them to be viewed, is it correct to tell your friends where they can be viewed?

    But that’s not what we’re concerned about. Our concern is whether it’s lawful or unlawful.

  8. LT says:

    Ethics mean nothing to you then?

  9. smog says:

    Of course, but that really is a separate question. The Assistant Commissioner didn’t offer ethical advice, he said that it might be illegal to own a copy of these pictures or to publish a link to them. That is, in my view, wrong.

    Ethically I’m in two minds – being the first to publish is clearly wrong, but saving people the minimal effort of using Google by saying http://idolasia.com/edison/ ? I don’t really think so. And certainly not illegal unless the law is a complete ass.

  10. Tinybear says:

    Of course ethics is important. But we’re not discussing ethics here. We’re discussing what the law allows and does not allow. Law has nothing to do with ethics. Indeed, ethics mean different things to different people. The law, on the other hand, treats (or should treat) everyone the same way.

  11. aka says:

    Do you have a link to the good photos? I haven’t seen them all properly yet

  12. smog says:

    If you read two comments above yours you will see the best link that I have. To the best of my knowledge that has all the 465 photos posted to date.

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