To sustain the development of Hong Kong's digital content and entertainment industry, it is crucial to strengthen protection against circumvention of technological measures for copyright protection. Effective legal protection and legal remedies to the TPMs will ameliorate our digital copyright law, which is a key driver for e-commerce adoption.
To this end, the administration proposes to extend existing civil rights of copyright owners against circumvention of TPMs-from copying infringement to cover access control measures, and the act of circumvention. Criminal liabilities are also proposed for the making, importation or export for sale or dealing in any circumvention devices and providing circumvention services of a commercial nature.
Disagreement within the ranks
But despite unanimous support for the purpose and intent of the new anti-circumvention provisions, copyright owners from the software game industry deeply disagreed with the administration on an exception in the new provisions.
According to the administration's proposal, criminal liability for dealing in such devices is exempted if a TPM has been employed to a physical copyright work and the TPM contains regional coding. In other words, dealing of circumvention devices solely designed for gaining access to parallel imported copyright works, e.g. video games or DVDs imported from other regions, is not under the scope of the new anti-circumvention provisions.
This proposed exception creates concern within the software game industry. They claim that, with this exception, no criminal action may be brought against circumvention devices designed for video game consoles of any brands available in the market.
It is the general practice of the software game industry to employ the same TPM to prevent the console from recognizing and playing pirated videogame discs or discs not designed for the Hong Kong market. If a person wants to benefit from the liberalization of parallel imported computer programs, which include video games discs, he has to modify his consoles by installing a "mod chip." Nevertheless, once the console is modified, the device circumvents not only the regional coding, but also the copyright protection measures for prohibiting the play of counterfeit games.
Obviously, the proposed exception fails to address the situation where the region coding is integrated with other protection measures in the same TPM system. It will legitimize the modification of game consoles and also exclude criminal liability on those who deal in modified consoles.
The underlying question
Is the play of parallel imported games the real objective of modifying a game console?
By observing the business practices of the shops selling modified consoles or offering the modification services, it is not difficult to find out the true reason. Over the past few years, even before the Copyright Ordinance was amended in 2003 for legalizing the sales of parallel imported computer games, counterfeit games have been continuously available in these shops or the locations nearby. When civil actions were taken against them for the sales of modified consoles or pirated games, these shops avoided liability and continued their business by simply changing their names of the shops. The copyright owners, at the end, get nothing.
Hong Kong received complaints of video game software piracy problem for years. The proposed amendment on copyright laws is a good way to end the "hide-and-seek" between copyright owners and infringers.
However, it is regrettable that the exception on circumvention of regional coding creates the loopholes which jeopardize the effectiveness of the TPMs and defeats the purpose of the new provisions. The administration shall consider removing this exception from the bill so that our law can be strengthened for reducing Hong Kong's piracy problem.
Sin Chung Kai is Hong Kong's Legislative Councillor for IT. Contact him at cksin@sinchungkai.org.hk