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Why Hong Kong’s copyright bill is no threat to free speech

Stacy Baird says the proposed exceptions, taken together, unambiguously address all the concerns, and more. In fact, it is likely to be the broadest free speech exception in copyright law anywhere in the world

Some netizens are concerned that the government, politicians or wealthy Hong Kong copyright owners will use copyright law to suppress free speech.

To see why the concern is no longer realistic, it’s important to understand the law protecting freedom of speech in Hong Kong and the government’s proposed amendment.

If one is concerned that the government will use all means to suppress free speech, including flouting the rule of law, then it won’t matter what the copyright law says

Trumping all law, including copyright, are Hong Kong’s protections for free speech and free expression: Article 27 of the Basic Law and Article 16 of the Hong Kong Bill of Rights. The Hong Kong courts have been unyielding guardians of Hong Kong’s Bill of Rights, with rulings over the years emphasising the importance of these fundamental freedoms.

Correspondingly, section 192 of the copyright ordinance, something of a broad “public interest” exception, preserves the public interest over the copyright interest. Open public discourse on political issues and criticism of government facilitated by the right to free speech is the basis for – and most important aspect of – the right in how it serves the public interest.

Importantly, copyright only protects an expression, not an idea. Ideological, religious, political, social and economic views cannot be copyrighted. If a politician espouses ideas that one wants to challenge or use to illustrate a political concern, one may express the idea without using the exact expression of the politician.

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As to what Hong Kong’s copyright law actually does: similar to other common law democracies, we have a fair dealing exception. For example, if sued for using a political speech or any copyrighted work such as a reworked movie poster or song with new political lyrics, one can offer the defence that the copyrighted work was used for the purpose of research, review, reporting current events or, most critically to the question of free speech, criticism.

Some raise the spectre of government influence on the courts as a potential problem, but it’s worth noting that if you get this far in the courts, you would be in a unique situation. In Hong Kong’s long history, no copyright lawsuit has been brought against an individual’s fair dealing.

And around the world, copyright law and the courts protect parody and free speech; so, were Hong Kong courts to look elsewhere for guidance, they would find a consistent body of jurisprudence protecting these rights.

For the most part, the copyright amendments under consideration have been pending for over eight years. In considering the 2011 amendments, some raised free speech concerns and thus sought an amendment to exempt parody. Recognising the concern went beyond simple parody and extended to a broader free speech issue, this year, the government has included a parody exception, but broader than in other jurisdictions, to include parody, satire, caricature and even pastiche, copying the style of a copyrighted work. The government also added a very broad exception for commenting on current events, and quotation.

If one is concerned that the government will use all means to suppress free speech, including flouting the rule of law, abrogating or ignoring the Basic Law and Bill of Rights, it won’t matter what the copyright law says.

But it seems to me that the proposed exceptions, taken together, the extraordinarily broad “parody”, current event commentary and quotation exceptions directly and unambiguously address all the free speech concerns, and more. It is likely to be the broadest free speech exception in copyright law anywhere in the world; and it makes it clear that it’s not the government’s intention to use or allow others to use copyright law to suppress free speech.

Yet critics are once again not satisfied and are delaying passage of the copyright amendment to seek an exemption for all “user generated content”.

Clearly going beyond free speech, they seek an exemption that I equate with providing all printers an exemption from copyright infringement – there’s no difference except that books and magazines are printed on paper and “content” is “generated” by “users” in digital form. Truly an exception designed to swallow the rule.

On the other hand, the clearly articulated purpose of the copyright amendment is to give copyright holders better tools to fight large-scale infringement and enable internet service providers to assist without risk of liability.

Here in Hong Kong, newspapers advertise set-top boxes to hack “free” access to copyrighted TV and movies, online sites enable downloading illegally “free” copies of music, movies, books and more. Hong Kong’s laws are not in line even with the most basic online copyright laws around the world. And now, with parody, current event and quotation exceptions, the law would break new ground, squarely addressing free speech.

I encourage the informed online community to embrace the amendments and the government to pass this long overdue legislation to enable legitimate online content to flourish.

Stacy Baird served as senior advisor and intellectual property & information technology counsel to key members of the US Senate and House of Representatives. He has held appointments as visiting fellow at the University of Hong Kong Faculty of Law and visiting scholar at the University of Southern California College of Letters, Arts and Sciences. Mr Baird has resided in Hong Kong for eight years

Source URL: http://www.scmp.com/comment/insight-opinion/article/1888267/why-hong-kongs-copyright-bill-no-threat-free-speech

Hong Kong must ensure that those who generate waste are responsible for it

Edwin Lau welcomes the launch of a government recycling fund, but says a much more effective way to reduce Hong Kong’s waste is to cut it at source – such as by introducing a waste charge

The slowdown of the world economy, coupled with relatively low oil prices, has led to the price of recyclables plummeting this year, with plastics affected most.

Many recyclers have stopped collecting used plastic as their high running costs cannot be covered by such low-value recyclables. Furthermore, it is quite common for recyclers to have to pay an “entrance” fee to gain access to large residential estates or shopping malls to collect recyclables and this further adds to their financial burden.

Without a waste charging law, most businesses and individuals do not take serious steps to manage their waste

Besides plastics, the price of metal and paper have also dropped substantially. Recently, I walked around several recycling shops; the cheapest price for iron was 50 cents per kilogram, paper, 40 cents per kilogram – with no price offered for plastic. Worryingly, without government and private-sector assistance, even if we put clean plastic into recycling bins, it will probably end up in landfills.

The government’s HK$1 billion Recycling Fund to reduce waste disposal is finally with us, and is accepting applications from this month. Officials hope the fund will enhance the efficiency of the recycling industry by subsidising the purchase of machines and trucks, as well as training for workers and the like.

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However, having talked to people who run recycling businesses, it seems the industry is not simply looking for subsidies to buy more or new machinery; instead, they want the fund to help tackle their immediate challenge – the high costs of labour, rent, insurance and other items that the current value of recyclables cannot even cover, let alone enable them to make a profit.

Our neighbour Taipei has regulations that require producers to be responsible for the waste generated by their businesses. They are required by law to contribute money to a fund established by the government to subsidise collectors and therefore ensure more types of recyclables are collected. Here in Hong Kong, only construction and demolition waste, plus plastic shopping bags, have mandatory charges. We are still awaiting effective policies for waste charging and producer responsibility.

The problem appears to be that the government doesn’t want to give recurrent subsidies to help the recycling industry, hence the one-off Recycling Fund.

It may not be best for the government to give long-term subsidies to the industry, but it should speed up the introduction of producer responsibility legislation so recyclers who collect packaging waste on their behalf get financial support.

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Without a waste charging law, most businesses and individuals do not take serious steps to manage their waste. Most corporations take a wait-and-see attitude on government regulations. On their own, they are unlikely to provide any resources for waste management.

Individuals, too, often don’t see the full picture. Take wedding banquets. The hosts often thought they were being environmentally friendly by allowing a non-governmental organisation to collect leftover food at the end – yet most are unwilling to pay the NGO’s transport costs. Few people see that they are the ones who are responsible for the waste generated, and the NGOs are providing a service.

With the Recycling Fund, the government has taken another step to help the industry. We should welcome this step, however small.

Companies in Hong Kong should also do their part. They should commit a small amount of money to managing their waste and, more importantly, set targets to encourage their employees to reduce waste at source. Cutting the use of plastic water bottles could be a good starting point.

Edwin Lau Che-feng is head of community engagement and partnership at Friends of the Earth (HK). www.foe.org.hk [4]

Writ filed for review over third runway

June 16, 2015

JANE CHEUNG and AMIE CHENG

A Tung Chung advocate yesterday applied for judicial review over the construction of the third airport runway.

Tung Chung Future’s community development officer, Wong Chun-yeung, 21, filed the writ to the High Court.

Wong said the Executive Council approval of the Airport Authority’s three- runway system in March is unconstitutional.

Departing passengers will be charged HK$180 from next year and airlines 15 percent more to help fund the third runway, whose budget has ballooned to HK$141.5 billion.

The third runway may be completed by 2023 if construction begins next year.

Green Sense founder Roy Tam Hoi- pong, who accompanied Wong in filing the writ, said afterwards that there were three grounds behind the judicial review.

The first was about the distinction between Hong Kong and mainland airspace, as the third runway would share airspace with Shenzhen and violate Article 130 of Basic Law, which states Hong Kong “shall be responsible on its own for matters of routine business and technical management of civil aviation.”

The second and third rationales concern contraventions of Article 64 of the Basic Law, which states that taxation and public expenditure should be approved by the Legislative Council.

http://thestandard.com.hk/news_detail.asp?we_cat=4&art_id=158026&sid=44669750&con_type=1&d_str=20150616&fc=2

How Hong Kong’s waste problem has grown with its wealth

May 2nd 2015

The problem of what to do with refuse is a relatively recent one; when most Hongkongers were poor, they found a use for everything – including bodily waste – writes Jason Wordie

Waste disposal remains a hot topic in Hong Kong, especially since the controversial incinerator project for Shek Kwu Chau, off southern Lantau, was – against all logic – finally approved.

Everything about this project is wrong: a remote location with high scenic amenity; exorbitant projected costs; outdated incineration technology; prevailing summer winds that will blow noxious fumes back towards the city’s most built-up areas, where air pollution is already a critical problem; and the cost of transporting solid waste there and removing the resultant ash.

Nothing makes sense except that the whole exercise provides a profitable boondoggle for those in the powerful construction sector, who will directly benefit.

Brownfield sites around Tuen Mun, where the ash will eventually be transported for concrete making purposes, are by far the best locations for such a facility.

But all were rejected for the flimsiest reasons.

None of the relevant officials were prepared to admit publicly that – as ever – powerful northwest New Territories vested interest groups simply wouldn’t accept an incinerator in their own backyards. Because what passes for government these days has no meaningful control in that part of Hong Kong – as recent parallel trading protests have demonstrated – sensible options were rendered politically and practically impossible. Our hapless Environmental Protection Department officials knew it. And that was the end of the matter.

But how was Hong Kong’s urban waste disposed of in the past? Until relatively recent times, there wasn’t that much. Large quantities of rubbish indicate generally affluent societies that can afford to throw things away.

The truly poor never dump items that might have further use; they simply cannot afford to do so. And until recently, Hong Kong and a large number of its people were overwhelmingly poor.

Metal cans and glass bottles were collected for their scrap value. Old newspapers were gathered, sold and reused for market wrappings before non biodegradable plastic bags made an appearance. Other paper scraps became kindling for solid-fuel cooking fires.

Faeces and urine were highly prized as agricultural fertiliser in traditional China. Collection and resale of nightsoil – yeh heung, or “midnight fragrance”, as human waste was euphemistically called – ensured that more than a few local fortunes owe their beginnings to the recycled contents of a crockful of You-Know-What.

These days, waste separation in Hong Kong is – for the most part – a done-for-show middle-class gesture towards greater environmental awareness. Most domestic waste remains unseparated and – in the absence of any meaningful glass recycling or municipal composting services, for example – why wouldn’t it be? All that waste that is meticulously divided by well meaning families goes into the same overflowing landfills.

Widespread cardboard scavenging and paper recycling, sadly, doesn’t signal the growth of greater environmental consciousness; it merely demonstrates that Hong Kong’s already catastrophic wealth chasm continues to widen.

Legions of old people with no meaningful government retirement protection (despite billions of dollars deployed on “white elephant” infrastructure projects, such as the Shek Kwu Chau incinerator) gather up flattened cardboard boxes late into the night all over Hong Kong.

The very sight of them is an ethical reproach to a society with Hong Kong’s trillion-dollar fiscal reserves. Some form of basic-but livable old-age pension scheme would barely dent this colossal hoard – and most recipients will be dead within a decade anyway.

http://www.scmp.com/magazines/post-magazine/article/1781565/how-hong-kongs-waste-problem-has-grown-its-wealth

Recycling the unrecyclable

2014-05-09

Ming Yeung

As Hong Kong is lagging behind its neighbors in ridding its mounting waste, a Recycling Fund established to thwart an imminent waste crisis, stakeholders say, wouldn’t serve its purpose unless it’s put to good use. Ming Yeung writes.

The Hong Kong government has long realized that the city’s waste will soon have no final resting place, forcing it to kick start a Recycling Fund with a planned HK$1 billion injection to make it tick.

The government’s prolonged bid to expand the three existing landfills — at Tseung Kwan O, Ta Kwu Ling and Tuen Mun — and to build an incinerator at Shek Kwu Chau, north of Lantau Island at whatever costs has become snarled though, running into acrimonious public protests and debate.

The Environmental Protection Department (EPD) said the SAR recycled only 2.16 million tonnes of waste in 2012 — 860,000 tonnes less than the year before.

Of the total recycled figure, about 60 percent of the decline was said to be the result of a drastic drop in the trading of plastic waste, of which 320,000 tonnes were recycled in 2012, compared to 840,000 tonnes in 2011 and 1.58 million tonnes in 2010.

(more…)

Hong Kong recycling rate ‘drastically overstated’

February 10, 2014

China′s Environmental Protection Department (MEP) reported a significantly lower recycling rate of 39% for 2012, well down on the 48% of the previous year and a far cry from the claimed 52% for 2010.

Hong Kong recycled ′just 2.16 million tonnes of waste in 2012′, which is 860 000 tonnes less than 2011, according to MEP. About 60% of the decline was the result of a severe drop in the trade of plastic waste, of which reportedly 320 000 tonnes was recycled last year compared to 840 000 tonnes in 2011 and 1.58 million tonnes in 2010.

Recycling figures for Hong Kong were ′distorted by external factors′ beyond their control, MEP officials note. They cite fluctuations in the waste trade and irregularities in export declarations as the main issues in establishing an accurate recycling rate.

The system for calculating Hong Kong’s recycling performance will be overhauled, with data collection to be improved by the implementation of measures recommended by a yet-to-be-commissioned consultant. But according to MEP, it is unlikely that the ‘distortion’ will influence policy-making or the achievement of targets as detailed in the last year’s waste management blueprint.

Some industry parties such as the World Green Organisation are wary of the ‘inflation of the recycling rate’. Its chief executive William Yu Yuen-ping argues that MEP should convene an ‘expert group’ to review the system. The government would also benefit from setting up a registration system for recyclers in order to get first-hand recycling data, it has been suggested.

http://www.recyclinginternational.com/recycling-news/7674/research-and-legislation/china/hong-kong-recycling-rate-039-drastically-overstated-039

Hong Kong’s first e-waste plant to be built by German recycling firm under multimillion-dollar deal

Shirley Zhao

May 9th 2015

A German recycling company has won a multimillion-dollar contract to build and operate Hong Kong’s first electronic waste recycling facility in Tuen Mun.

Alba Integrated Waste Solutions Hong Kong, a joint-venture subsidiary of the Alba Group, signed a 12-year contract with the government yesterday. It will spend two years building the plant and then operate the collection and recycling system in the city for the next 10 years.

In February, the Legislative Council’s Finance Committee approved the government’s request for HK$548.6 million to construct the system. The government will also fund the operation costs, which are based on the volume of e-waste collected and treated at the plant. Officials expect the bill will run to HK$200 million a year.

Axel Schweitzer, chief executive of Alba, said if the price of the recyclables did not fall during the 10-year period, the company would expect a turnover of about HK$2.5 billion over the decade. The recyclables would be mainly sold to mainland buyers.

“As a world-beating international metropolis, Hong Kong is responding proactively to the challenges of waste management and recycling,” said Schweitzer.

“We are confident that the project will make a substantial contribution to the city’s environmental management system and open a new chapter on its sustainable economic development.”

Schweitzer said the plant would be capable of processing 30,000 tonnes of waste a year but the capability could be extended to a maximum of 56,000 tonnes by arranging additional shifts as needed.

The company will also set up eight collection points and three recycling centres across the city. Schweitzer said residents could go to the centres and the plant to learn more about e-waste recycling.

The city produces about 70,000 tonnes of electronic waste a year.

The system will be in line with the government’s proposed “polluter pays” scheme, where importers or distributors of five categories of appliances – televisions, fridges, washing machines, computer products and air-conditioners – will have to pay a “recycling fee” to help fund disposal of the city’s electrical goods.

Customers who buy a new television, for example, will be able to request the retailer to arrange free removal of the old set.

The government says the level of the fees will be submitted to Legco for approval “in due course”.

Alba Integrated Waste Solutions comprises Alba Asia, Germany-based Erdwich Vertriebs and Hong Kong-based IWS Environmental Technologies.

http://www.scmp.com/news/hong-kong/health-environment/article/1790188/german-firm-will-run-first-e-waste-plant

CTA says: What chance the Environment with so many rubber stampers?

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UNIVERSAL POLITICS (including Hong Kong) GRAPHICALLY EXPLAINED

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Difficult to get airspace concession

SCMP Letters to Editor

During the presentation the Airport Authority was giving to the Town Planning Board on April 10, Wilson Fung Wing-yip, the authority’s executive director of corporate development, broached a future master plan being drafted wherein a study would be carried out into the need for a fourth runway or even a replacement airport.

Better late than never, this planning work.

But it is hoped the logistics of the planning work will not be “cart before the horse” this time, so that the need for a fourth runway or otherwise will be identified before resources are committed to add the third runway to Chek Lap Kok. For it is patently obvious that there is no possibility of adding a fourth runway at Chek Lap Kok.

The crux of the “third runway at Chek Lap Kok” airspace cloud we’re under is simply whether the mainland authorities had given the specific blessing for traffic from the third runway to turn north so that at least two of the three runways can be operated independent of each other, to enable a total capacity of 102 movements to be achieved.

The rest is empty talk. This is by no means an easy concession to grant, considering the criss-crossing between each other’s traffic, as can be seen on the diagram attached to the report “Airspace conflict could hold back third runway” (January 23).

If it was easy, it would have been granted for traffic from the present north runway to turn north, to enable the present two runways to operate independent of each other, achieving far more than the 68 movements an hour projected for later this year.

The quest for this concession is what started the umpteen tripartite meetings, starting before 1997.

Peter Lok, Chai Wan

http://www.scmp.com/comment/letters/article/1772131/letters-editor-april-21-2015