Anyone who likes this article and faxes or emails it to friends will have violated the revised Copyright Ordinance, for which he is liable to a $50,000 fine and four years in prison. Such a stiff penalty is the consequence of changes introduced by the Intellectual Property (Miscellaneous Amendments) Ordinance 2000, which also affected the Patents Ordinance and Prevention of Copyright Piracy Ordinance.

Hong Kong, as a result, has become the first to make criminal not only pirates, who deserve no mercy, but also ordinary citizens, who circulate materials for personal interest and not for profit. The effect of this revised Copyright Ordinance - especially as it pertains to sections 31, 32 and 95 against the replicating of materials - may not be the curbing of piracy only but the stifling of information exchanges and intellectual discourse vital to a free, enlightened society. The business community has long advocated a comprehensive law against computer software and entertainment discs, which, however, is not the same as giving blanket approval for stopping the casual, innocuous, and reasonable use of information in the public domain.

The Hong Kong government acted or, rather, overreacted to piracy because for years it felt hapless as traffickers of bootlegged computer software and entertainment discs operated with virtual impunity in the territory and across the border. Foreign companies applied pressure and, later, so did local artistes, producers and merchants.

The draconian course, which the government invariably took, was to lump all forms of "breaches" of reproduction together, regardless of their differing gravity, and slap on stiff penalties as a deterrent to pirates and as a concession to multinationals that had a lot of lobbying clout. Both the government and the companies figured they had to be swift and decisive because the advances of digital technology and the Internet were making the copying and circulation of their "proprietary" materials easier and policing harder. Neither could be oblivious to the damages being done to the music industry by Napster and similar Web sites on which surfers cruise for free downloads. The victories that record companies had chalked up against the Net music traffickers last year must have emboldened other industries to get tough and get results.

The Liberal Party and the business community here sided overwhelmingly with the government and foreign corporations against piracy because free trade would be doomed if precious materials were free for the stealing. But not many in my sector now agree with the revised, immoderate ordinance that is so sweeping and invasive. We want a stay in the aspects of the law that apply to individuals and institutions which copy and circulate limited volume of materials not for commercial ends, merely for knowledge, until these sections of the Ordinance are repealed or amended.

I think it was an oversight of the government to plunge headlong into drafting the Intellectual Property (Miscellaneous Amendments) Ordinance without first seriously studying the legislative precedents in other equally developed societies, which are still striving to achieve a balance between protection of copyright and that of personal freedom and curiosity. The administrative officers who conceived the bill wanted dramatic action not only to adopt a sensible law but also to issue a strong statement, which was not the right way to craft that piece of legislation.

Government lawyers apparently did not consult enough the International Federation of Reproduction Rights Organizations, an umbrella group founded back in 1980 to stem global breaches of copyrights that predated the digital revolution. The Federation has carefully monitored various countries' progress in drafting, enacting and enforcing laws that ensure decent returns for companies and artistes for their creative works and proper access to information.

I believe Hong Kong should examine the Federation's constantly updated findings and seek advice on how to achieve a similar equilibrium. Some jurisdictions - such as Austria, Belgium, Germany, Greece, Portugal and Spain of the European Union - impose a copying "equipment levy", a portion of whose proceeds goes to compensate artistes, publishers and others affected by limited copying and circulation of their works. These countries, minus Austria but including the Netherlands have, besides certain exemptions for the purposes of education, a statutory licensing regime to tax the users according to their status and their volume of photocopying. I particularly like the Dutch law's dispensation for restricted use of materials:
"It is permissible to reproduce on behalf of an enterprise, organization or other establishment, individual articles, reports or other texts which have appeared in a daily or weekly newspaper or weekly or other periodical, or short passages from books, pamphlets, and other writings … provided that that the reproduction is limited to the number of copies which the enterprise, organization or establishment reasonably needs."

Singapore has likewise allowed for the use of a "reasonable portion" of any print or electronic publication, amounting to a total of no more than ten per cent of the object's content or a chapter of a book. The Hong Kong government is now willing to modify its earlier hard stance but still it has to give more so as to give to the honest people and businesses their fair access to published information and opinions.
I would think, therefore, a person should be able to fax or email my article without trouble from the law but should cease and desist if he were to reproduce pages upon pages of the Morning Post op-ed section for resale.

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