The primary aim of the consultation was to gather views on the Commerce and Economic Development Bureau Intellectual Property Department’s (“IPD”) paper (“consultation paper”) on enhancing the Copyright Ordinance (Cap.528)(“CO”), and bringing Hong Kong’s copyright regime in line with international standards. The consultation paper addresses issues such as copyright protection and infringement liability for AI-generated works, potential copyright exceptions, and other related concerns including deepfakes and transparency of AI systems.
The IPD has stated that the public consultation, which ran from 8 July to 8 September, forms part of its comprehensive strategy to enhance Hong Kong’s position as a regional hub for intellectual property trading, an international centre for innovation and technology, and a meeting point for “East-meets-West” cultural exchange under the National 14th Five-Year Plan.
Current Hong Kong copyright regime
The IPD provides in its consultation paper that existing provisions under the CO are capable of providing protection for AI-generated works. Copyright protection under the CO currently extends to original literary, dramatic, musical and artistic works as well as sound recordings, films, broadcasts, cable programmes and the typographical arrangement of published editions. Protection for original works includes works that are “computer generated”, a term which the IPD says is sufficient to cover advancing technologies, including works created by computers without human authorship. In the absence of a human author, the ‘author’ of original computer and/or AI generated works will generally be considered “the person by whom the arrangements necessary for the creation of the work are undertaken”.
As for copyright infringement issues related to original AI-generated works, the IPD considers that these should be evaluated on a case-by-case basis and measured against existing comprehensive liability provisions in the CO, along with the typical contractual practices between AI system owners and end-users.
Proposed CO amendments - text and data mining exception
A key aspect of the consultation paper is the proposed implementation of a text and data mining exception (“TDM exception”). TDM is a process that utilises computational techniques to analyse large quantities of data, which may include copyrighted works.
The consultation paper examines TDM exceptions in other jurisdictions, such as the EU, Singapore, Japan, and the UK. While the TDM exceptions in the EU, Singapore and Japan cover both commercial and non-commercial uses, the UK's exception is limited to non-commercial research. Notably, the EU's exception includes an "opt-out" provision for copyright owners.
The CO currently does not have a TDM exception, though it does contain a number of exceptions that permit fair dealing of copyright works. The consultation paper examines arguments in favour for and against the implementation of a TDM exception. Arguments in favour of a TDM exception include promoting accessibility to copyright works for teaching AI systems, enabling researchers and analysts to examine large datasets, and aligning with overseas jurisdictions. Arguments against include potential interference with current market practices and concerns about sustainability.
The IPD believes that the advantages of having a TDM exception outweigh any potential drawbacks and suggests including both commercial and non-commercial uses in the exception. Additionally, the IPD suggests that certain conditions should be imposed, such as ensuring lawful access to copyright works and providing a voluntary opt-out option for copyright owners.
Final remarks
In preparing for the consultation, the IPD conducted a comprehensive review of local legislation, international practices, and prevailing market dynamics. It follows the implementation of the Copyright (Amendment) Ordinance 2022 in May 2023 which was aimed at modernising the copyright framework in the digital environment.
The consultation paper is available here.
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