Wenwei Guan (City University of Hong Kong)
Hong Kong Law Journal
Vol. 45, Part 3 of 2015, pp 719-742
Abstract: Learning from the failure of the previous attempt in 2012, Hong Kong’s Copyright (Amendment) Bill 2014 introduces parody exception to accommodate the public’s concerns about free speech, yet rejects the user-generated content (UGC) exception. By reference to practices and debates in other jurisdictions, the article offers a critical examination of Hong Kong’s bold yet conservative move in redefining copyright’s fair dealing doctrine. The article suggests that, caught between parody and UGC exceptions in the context of free speech, the 2014 Bill indicates an unfortunate confusion in applying the three-step test, which leads to its failure to achieve a balance between copyright holders and users in the era of the “participative web”. Extending the author’s exclusive derivative right to digital network environment with limited exception to works for parody purpose only, copyright protection, even after the 2014 Bill, continues to be the end rather than beginning of creation in the digital network environment. The article suggests that the success of the 2014 Bill depends on a careful revisiting of the fair dealing doctrine and accommodating new author-user dynamics in the digital age, rather than making unprincipled concessions to the rhetoric of free speech.