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Why Hong Kong Needs a Bill of Rights, Not Just a New Copyright Law: Opinion

Discussion of a proposed new copyright bill in Hong Kong got under way again this week in the Legislative Council. It had been held up by days of delaying tactics, the Christmas-New Year holidays, and by procedural motions attempting to adjourn the debate until the HK government had rethought its approach to the thorny, but important issue.

Filibuster tactics and demonstrations, even a small explosion outside LegCo, dominated headlines, rather than the issues at hand: performance, piracy, plagiarism and the right to parody.

Part of the reason the issues got lost is a distrust of the government, which is perceived as being largely run for the benefit of local tycoons and the central government in Beijing.

Questions about freedom of expression and business online – “fair use” versus “fair dealing” — have been clumsily handled and poorly explained.

Equally badly, the proposed new copyright law will arrive on the statute books out of date and immediately need to be updated, government admits.

The news in the past week that five Hong Kong book sellers may have been kidnapped and taken across the border to China for questioning by security forces, is a terrifying development. And one that requires the Hong Kong government – constitutionally operating with a “high degree of autonomy” until 2047 – to take a stand.

It needs to come up with a Bill of Rights, like ones currently being drafted in several countries around the world. One that protects its citizens and companies, guarantees freedom of speech (online and off), and ensures that laws will be enforced by independent regulators, police, courts and arbitrators. Not just a copyright law that defines content ownership.

Bills of Rights were recently defined as “based upon broad public participation, which entrench human rights and safeguard space for innovation, while recognizing the legitimate needs of companies to make profits and of governments to fight crime,” by Tim Berners Lee, inventor of the World Wide Web, writing in The Economist.

“This bill is vital to the survival of the cultural industries of Hong Kong; film, television and animation,” says Ma Fung-kwok, a pro-government legislator specializing in the creative sector, of the copyright bill.

Free operation of the media and the courts is just as important if tiny Hong Kong is to maintain its outsized role in Asian media, culture, finance, and dispute resolution.

Flagship Entertainment, the recently-launched Chinese movie movie production joint venture between Warner Bros and China Media Capital did not settle on the Special Administrative Area as its legal seat just for Hong Kong’s iconic scenery.

The best outcome might be for the HK government to bulldoze the copyright bill through LegCo, as it recently did with the IT Development Bureau, and then immediately and earnestly start work on an Internet Bill of Rights. No delaying until after the next Chief Executive election.

Whether the HK government is brave enough to differentiate itself from its political masters in Beijing was doubtful before events of the last weeks. Now it has an opportunity to do the right thing.

Aside from the bookseller kidnappings, December saw a couple of other scary scenarios emerge.

At the World Internet Forum, Chinese president Xi Jinping asserted China’s right to govern the Web according to its own rules. And China edged forward with a new cyber-security law that is likely to require companies operating in China to provide software backdoors to the Chinese security services. That is a development likely to keep Facebook and Google out of China for a while longer.

If the Hong Kong government does not go ahead with an Internet rights bill and it prefers to self-censor, then it increases the risk that HK becomes just another mainland Chinese city — a nightmare scenario for HK government and citizens alike.

Instead, if it succeeds with a Rights Bill, it could keep Hong Kong, on China’s doorstep, as relevant as it was through the decades when China had a closed economy; as a portal to China, but built on a common law system with Western-style separation of powers.

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