The Democratic Party of Hong Kong Response to the Consultation Paper "Combating Intellectual Property Rights Infringement in the Hong Kong Special Administrative Region: Possible Additional Legal Tools" Circulated by Trade and Industry Bureau, February 1999

(April 30, 1999)

Forward

The Democratic Party strongly supports the protection of intellectual property. The rampant copyright infringement activities in Hong Kong is repugnant and has brought disastrous results to Hong Kong's economy and copyright industries.

The Democratic Party appreciates the efforts taken by the Government to review legal tools for combating copyright piracy; however, we believe that in addition to reviewing legal tools, the Government should fully review the effectiveness of the current measures against copyright infringement.

The Democratic Party takes this opportunity to present our views on the Consultation Paper:

Option 1 and 2: Organized and Serious Crime

The Democratic Party supports including piracy and counterfeiting offences under the Organized and Serious Crimes Ordinance.

The present situation of piracy is serious. Indeed, there are evidences suggesting that the copying infringement activities are heavily penetrated by triad members and international crime syndicates. If copyright infringement is included under OSCO, the removal of the right to silence would enable prosecution against the masterminds instead of merely the scapegoats in the front lines.

Moreover, we agree that confiscation can be an effective deterrent against copyright piracy and a powerful mean to crack down on the economic power of organized crime groups.

Option 3: Mandatory or Standard Sentences

The Democratic Party has reservations about the introduction of mandatory or standard sentences for copyright and trade mark offences because this proposal lacks flexibility. Fixed Penalty might not be a pragmatic approach in case of prosecution against disadvantaged people who are often exploited by those criminal masterminds. It is more feasible to ask the Court of Appeal to hand down sentencing guidelines for lower courts.

Option 4 and 5: Closure Order

In Principle, landlords should be presumed innocent and should not be penalized for tenants' activities, expecting landlords to have sufficient knowledge of the activities of the tenants is placing an unreasonable burden on them.

However, in view of the outrageous copyright infringement activities, we support Option 4. We agree that premises used repeated for piracy or counterfeiting activities should be closed. Such closure order against repeated offending premises would provide landlords with reasonable time to rectify problems and terminate the tenancy in questions and hence protect the legitimate rights of the landlords. Moreover, such measure provides landlords the incentive to exercise extra care when leasing out their premises.

The Democratic Party has reservations about Option 5; the suggested penalty imposed on the landlords might be too severe.

Option 6 and 7: Banning Unauthorized Videotaping

Videotaping in cinemas is obviously an act of infringing copyright. Therefore, the Democratic Party supports banning unauthorized video recording in cinemas. There is little reason for videotaping in cinemas is necessary and permissible except for special situations that are under authorization of copyright owners. However, bringing video equipment into cinema could be innocent, so we have reservations about Option 5, which suggests banning video equipment in cinemas.

Option 8: User Liability

The Democratic Party opposes the proposal to impose liability on individual consumers of pirated products.

Any kind of punishment requires prosecution proving the suspect is guilty, in our case, proving the consumer willfully purchased pirated products. It would be very difficult to prove and illegitimate to assume the consumer intentionally purchased pirated products with full knowledge of distinguishing pirated from genuine products. The lengthy and cumbersome trial might eventually nullify the law because the law will hardly be enforceable. With these remarks, the Democratic Party currently holds the view that it is inappropriate to fine consumers who purchase pirated goods.

The Democratic Party suggests the Government to seriously study and consider the feasibility of requiring licenses to sell copyright works, including music, film and software. There have been voices from the public suggesting that licenses may allow the Government to closely monitor the sales of copyright products and may act as indicators for consumers where to buy genuine copyright works. The Government should further explore this suggestion.

Conclusion:

At this stage, we think efforts of combating intellectual property infringement should focus on those who are involved in actual activities of making and selling infringing products. Other parties who have a chance of involuntarily assisting such infringing activities should not be targeted.

The Democratic Party urges the Government to fully review the current measures for combating piracy and to adopt a multi-pronged approach including legislation, law enforcement and public education with liaison with the copyright industry.

On behalf of the Democratic Party, I thank you for your time in considering our submission.