Identifier
Created
Classification
Origin
08HONGKONG2121
2008-11-21 03:03:00
CONFIDENTIAL
Consulate Hong Kong
Cable title:  

HONG KONG SHIFTING TOWARD VOLUNTARY RULES FOR

Tags:  ECON EFIN EINV ETRD HK CH 
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VZCZCXRO6225
RR RUEHCHI RUEHCN RUEHDT RUEHGH RUEHHM RUEHVC
DE RUEHHK #2121/01 3260303
ZNY CCCCC ZZH
R 210303Z NOV 08
FM AMCONSUL HONG KONG
TO RUEHC/SECSTATE WASHDC 6283
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS
RUEHOO/CHINA POSTS COLLECTIVE
RUCPDOC/DEPT OF COMMERCE WASHDC
C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002121 

SIPDIS

STATE FOR EAP/CM AND EEB/IPE, USPTO FOR TIM BROWNING, USTR
FOR JEFF LEE

E.O. 12958: DECL: 11/18/2018
TAGS: ECON EFIN EINV ETRD HK CH
SUBJECT: HONG KONG SHIFTING TOWARD VOLUNTARY RULES FOR
DIGITAL COPYRIGHT PROTECTION

REF: HONG KONG 1775

Classified By: Consul General Joseph Donovan for reasons 1.4 (b) and (d
)

C O N F I D E N T I A L SECTION 01 OF 02 HONG KONG 002121

SIPDIS

STATE FOR EAP/CM AND EEB/IPE, USPTO FOR TIM BROWNING, USTR
FOR JEFF LEE

E.O. 12958: DECL: 11/18/2018
TAGS: ECON EFIN EINV ETRD HK CH
SUBJECT: HONG KONG SHIFTING TOWARD VOLUNTARY RULES FOR
DIGITAL COPYRIGHT PROTECTION

REF: HONG KONG 1775

Classified By: Consul General Joseph Donovan for reasons 1.4 (b) and (d
)


1. (C) Summary: The Hong Kong Government (HKG) has postponed
efforts to enact legislative amendments to protect
copyrighted materials in the digital realm. The government
instead seeks to use its recently established tripartite
forum (including internet service providers, content
providers, and content users) to establish a voluntary code
of conduct governing the electronic copying and transmission
of protected content. Content providers oppose this new
government position. They say a voluntary code will lack
statutory penalties, and they expect the tripartite forum's
progress toward a negotiated agreement to remain slow. End
summary.


2. (C) Comment: If the HKG pursues this new approach,
emphasizing the tripartite forum at the expense of
legislative amendments to the Copyright Ordinance, we believe
Hong Kong risks its status as a leading protector of IPR in
the region. While the motives for the government's shift
remain unclear, the result is likely to be a significant
delay in establishing a formal IPR protection framework for
the digital realm. If the tripartite forum demonstrates
little progress in coming months, as many observers expect,
content providers will grow increasingly impatient. In 2009
and beyond, their growing copyright infringement losses could
override some members' willingness to continue participation
in the forum. End comment.

============================================= =======
Legislation and Voluntary Code on Parallel Tracks...
============================================= =======


3. (SBU) On August 31, the HKG's Commerce and Economic
Development Bureau (CEDB) closed the public comment period on
several proposals to modernize and strengthen Hong Kong's
Copyright Ordinance (CO). The CEDB's proposed legislative
amendments would broaden copyright protection in a
"technology neutral" manner to cover all modes of electronic
transmission of copyrighted materials. Until recently,
industry observers expected the government to enact the
amendments by summer 2009.


4. (C) As most of the proposed CO amendments involve the
rights and responsibilities of Internet service providers
(ISPs),the CEDB recently established a tripartite forum
composed of representatives from ISPs, copyright owners and
content users. As noted in the minutes from the first
tripartite forum meeting on July 16, 2008, the CEDB official
who chaired the meeting stated that the forum should be used
to draft a voluntary code of practice for ISPs by June 2009,
in order to "tie in with the legislative timetable" for the
broader proposals to amend the CO (reftel). We recently
learned that the HKG has decided to depart from this
approach.

=========================
...Until Recently Merging
=========================


5. (C) Stephen Selby, Director of the HKG's Intellectual
Property Department (part of the CEDB),told us on November
13 that the HKG will postpone its planned amendments to the
CO. "We've seen some very cogent arguments for doing no new
legislation in the digital IPR realm," he said. The HKG now
looks to use the tripartite forum to establish a voluntary
set of rules governing electronic transmission of copyrighted
materials. Legislative amendments to the CO will be pursued
further only if the tripartite forum fails to produce an
acceptable agreement among its constituent negotiating
parties. According to Selby, the CEDB seeks to emulate the
UK government's attempts to establish a voluntary framework
to prevent unauthorized copying and dissemination of
electronically stored products.

============================================
Content Providers Annoyed With New Direction
============================================


6. (C) Several members of AmCham's Intellectual Property
Committee confirmed the HKG's new direction to us and
expressed their displeasure. Committee member and Executive
Director of the International Federation Against Copyright
Theft (IFACT) in Greater China, Sam Ho, told us that IFACT

HONG KONG 00002121 002 OF 002


opposes the HKG's efforts to replace legislated amendments
with a voluntary code of conduct. He said, "A voluntary code
will have civil rather than criminal penalties, and it won't
provide enough protection to content providers." As a
participant in the tripartite forum, Ho was also concerned
that the forum's deliberations would proceed until well into

2010. He said, "We can't afford a delay like that, before we
get the legal protection we need."
DONOVAN