Consumer Council Submission on Copyright Protection in the Digital Environment Code of Practices pursuant to the proposed Section 881 of the Copyright Ordinance

2 March 2012
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The Consumer Council supports introducing in the Copyright (Amendment) Bill 2011 both criminal and civil liabilities on any person who makes a false statement in a notice of alleged copyright infringement.

CC welcomes giving a subscriber under the Code of Practices the option of requesting the relevant Online Service Provider (OSP) not to disclose his personal data when sending a copy of the subscriber's counter notice to the complainant. CC believes this would encourage a subscriber to challenge the legitimacy of the claim of rights of the copyright holder without running the risk of being made the target of legal action by the complainant.

However, CC is concerned whether consumers' interest would be incidentally jeopardized under the proposed procedures:

(1)    CC notes the provision that an OSP may, as soon as practicable upon receipt of a notice of alleged infringement, immediately in the context of the digital environment, remove the material or disable access to the material or activities to which the alleged infringement relates. Although the notice supposedly should contain a description of how the materials and/or activities in question infringe the copyright owner's right in the copyright work concerned, CC has reservation about requiring the OSP to take down allegedly infringing materials solely on the basis of the notice when the claim of copyright ownership is an issue for adjudication by court.

(2)     the requirement for the OSP to act as soon as practicable may mean that the subscriber effectively has no chance to resist removal of the material concerned, and the act taken will stifle criticism, commentary and fair use. It is also possible that the procedures may be abused and used for other purposes than copyright protection such as creating leverage in a competitive marketplace.

CC therefore urges that the Code of Practices should safeguard not only the interest of OSPs but also the interest of consumers. We suggest that consideration be given to requiring an OSP to remove the material or disable access to the material or activity in question residing on its service platform within a reasonable time after the OSP has sent a written notice to the subscriber about the alleged infringement, in order to balance the interests of copyright owners and the interests of consumers.