IT Voice responding to the Government’s Consultation on "Copyright Protection in the Digital Environment"

Date: 30 April 2007

IT Voice Responding to the Government’s Consultation on

“Copyright Protection in the Digital Environment”

About Us

IT Voice is a group of prominent IT professionals. We work at the frontier of the sector, rather than sitting within four walls of the office. Among the group there are information security professionals holding multiple international recognized designations; there are also people who were the first batch of Hong Kong's Internet Service Provider, significantly contributing to the foundation of the Internet Infrastructure; there is person who introduced a lot of pioneering products and technologies to Hong Kong; and there is also young inventor of patents and business founder. The group members are extremely active in the sector and are holding key positions in the dominating associations. They are frequent guest speakers to the industry sector.

IT Voice comprising six independent candidates without any political affiliation, are asking for a better opportunity for the public to actually take part in the policy development of Hong Kong.

1. General Comment on the Consultation Paper

1.1 IT Voice agrees that the copyright law should be modernized to cope with the digital environment. It should be enacted in a way which can endure with the technological changes.

1.2 In this review, the interest of the stakeholders must be balanced. The law should not have adverse impact to the freedom of expression.

1.3 What is the purpose of copyright? The consultation paper seems to take a view on copyright protection without answering this question first. In so doing, the conclusion of the consultation paper is biased, though not wrong, towards viewing creative work as a commercial product. In our view, copyright is a mechanism to preserve the incentive for creativity and innovation. It also promotes a sharing of creative work via a legitimate way. Copyright is a mean, not an end. Protecting the copyright of a creative work serves to guard the interest of the copyright owner by restricting the use of the copyrighted materials. It is believed that the owner can continue his creative work with the license fee. However, there should be a limit to refrain it from destroying the creativity and sharing. A good example is Mr. Cliff Richard in UK calling for an extension of copyright materials retrospectively from 50 years. This call had received criticisms of forbidding the sharing of creative works.

1.4 There are critiques to copyright (anti-copyright). The “Free /Open Source (software) - Creative Common (non-software)” movement is an alternative to advocacy of creativity and sharing.

1.5 The success of Mozilla project and many Linux distributions have indicated open source and free software can breed creativity and sharing without the need for copyright.

1.6. There are also examples where Creative Commons and Copyright can be creatively mixed to bring about creativity, sharing and businesses. Successful experience from security software, such as the network management system Nagios (or OpenNMS[1], the commercial version), Snort (or SourceFire[2], the commercial version), and stock photo exchange stock.xchng (or stockxpert[3], the commercial service).

1.7. The consultation paper should better be rewritten with a refreshed and balanced view. Otherwise, the consultation can only obtain a biased result.

2. Legal Liability for Unauthorized Uploading and Downloading

2.1 Fair use and fair dealing

We agree to the principles in the UK's Gowers Review of Intellectual Properties 2006 [4]. While the government is legislating against illegal use of copyrighted materials, the law should, on the other hand, be amended such that private copying and fair use of copyrighted material is legal.

Private copying refers to the copying of a piece of licensed work by the owner into other format for storage or playback using other media. In Canada, private copying for personal use has been expressly permitted by statute since 1999. We call for the relaxation in the law to allow private copying to cope with the digital age.

We also suggest the government to amend the copyright law so that the fair use of copyrighted work —including the making of unauthorized copies—in the following contexts do not require permission from the copyright owner. References can be made to the US Digital Millennium Copyright Act (DMCA)

• in connection with criticism of or comment on the work
• in the course of news reporting
• for teaching purposes, or
• as part of scholarship or research activity.

3. No Criminalization to uploading and downloading copyrighted works

3.1 We object to the criminalization of uploading and downloading copyrighted works. The justifications giving in the consultation paper for criminalization is extremely weak. It merely said that it was tough for the copyright owners to investigate and sue infringers in civil litigation process. The penalty of breaking a law, whether it is criminal or civil, should be based on the damage and consequences of the act to the victim and society at large, it should not be based on the process of investigating and convicting the person commits the act. Otherwise, we will have to release all the criminals who sells drugs to our kids in discos as they are relatively easier to be caught. We see this view a flaw.

3.2 The current civil liabilities in uploading and downloading is sufficient to penalize the infringers. There are successful cases in which the owner had sued infringers and forced them to settlement outside court.

3.3 We have to balance the interests of different parties. It is not fair to shift the burden of evidence collection from the copyright owner to the police force, or to other parties, i.e. Online Service Providers (OSPs), which the matter is the commercial interest of the copyright owners. It is also not fair to the infringers that the criminal liabilities is not proportional to the act of infringement. While other manufacturing industries, including the software industry, have invested on technologies and methodologies to protect their creative works to be copied illegally, we do not see why some creative industry such as the music and file industries could not do the same.

4. The Role of Online Service Providers

4.1 We object to introduce liabilities to online service providers (OSPs) to log extra activity records of privacy activities.

The current OSP logging, though without legislative enforcement, has been proved to be effective via industry best practice. Law enforcement is able to obtain the necessary OSP customer personal data for criminal investigation with a court order. Law enforcement may also serve order to request OSPs to log activity suspected party if the OSP has that capability.

The copyright owners had also successful obtain court orders to enforce OSPs to reveal infringers' personal data. There is no need to legislate for this.

Some owner demanding OSPs logging users P2P activities, without addressing the extra resources required by OSPs to perform it. It is also not proportional for the act of copyright infringement to have a higher standard of logging than criminal investigations.

4.2 The legislation of logging P2P activities is destined to be a failure.

P2P is a vague definition of a class of different protocols. They keep on changing all the time. It had been proved that it is not difficult to bypass any detection and blocking of P2P protocols. Legislation on logging of P2P activities is destined to a failure.

4.3 We object to the introduction of notice and takedown system. According to experience of the DMCA, the measure is bound to be abused and infringing of privacy.

5. Facilitating Copyright Owners to Take Civil Actions against Online Infringement

5.1 We object to the fast track approach for copyright owners to obtain infringers' personal data from OSPs without going through the court. This is not proportional to set a lower standard for the act of copyright infringement than criminal cases in obtaining a court order.

6. Better Transparency and Accountability in Private Investigations

6.1 We have seen copyright owners actively investigating cases of copyright infringement. While we appreciate they take ownership of their rights, we would like to propose measures to increase the credibility of their approaches.

6.2 Collection of information on personal activities over the Internet touches on the most sensitive privacy issue. Private investigations are not properly scrutinized by an accountable party as in law enforcement investigation. It can be open to challenge.

6.3 We propose the industry carrying out investigations and surveillances to provide more transparency on the methodology of investigation, scope of the surveillance, and how the collected data is handled, so as to alleviate the public concerns over privacy infringement. The data obtained by the copyright owners during their investigation and from the ISP should be treated as strictly confidential data asset. The storage, transport and erasure should be undertaken in a secure and managed way.

6.4 We also propose the court setting a standard for acceptance of application of court order to reveal infringers' personal data.

The End

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[1] Nagios, the network monitoring system, http://nagios.org/
OpenNMS, http://www.opennms.com/

[2] Snort, the network intrusion detection system, http://www.snort.org/

SourceFire, http://www.sourcefire.com/

[3] Stock.xchnge http://www.sxc.hu/

StockExpert http://www.stockxpert.com/

[4] Andrew Gowers. Gower's Review of Intellectual Properties 2006

http://www.hm-treasury.gov.uk/independent_reviews/gowers_review_intellectual_property/gowersreview_scope.cfm