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Legal
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Response to Consultation Paper on Copyright Protection in the Digital
Environment
The Secretary for
Commerce, Industry and Technology ("the Secretary") issued a
Consultation Paper titled "Copyright Protection in the Digital Environment"
in December 2006 ("the Paper") with the objective of reviewing
copyright law. In response, the Privacy Commissioner made submissions
on, inter alia, the following issues:
| (i) |
The Paper suggested
that a simple, faster and less costly mechanism be provided for
the copyright owners to request Internet Access Service Providers
("IASPs") to disclose the identity of their clients allegedly
engaged in online copyright infringing activities. The Privacy Commissioner
considers that the mere fact that a "quick and inexpensive"
alternative will make effective enforcement by a copyright owner
is insufficient justification having regard to the privacy intrusion
as well as the adverse action that will be taken against the data
subject and that such disclosure may not fall within the original
or directly related purpose of collection of personal data by the
IASPs.
The Privacy
Commissioner called for careful consideration by the Secretary especially
in view that the Ordinance as it currently stands has provided for
exemption where personal data are used for the purpose of "prevention,
preclusion or remedying (including punishment) of unlawful or seriously
improper conduct" and application of the use limitation principle
would be likely to prejudice the purpose. Third party discovery
is also available to the copyright owner to apply to court for an
order of Norwich Pharmacal relief. Judicial oversight is found to
be more effective in safeguarding personal data privacy right and
the release of personal data by the IASPs without judicial scrutiny
will likely open a floodgate for others requiring IASPs to disclose
personal data prejudicing personal data privacy.
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| (ii) |
In relation
to the suggestion that statutory requirement be imposed for IASPs
to keep records of clients' online communications, the Privacy Commissioner
drew the attention of the Secretary to the duty imposed upon data
users under the Ordinance to erase personal data no longer required
for the purpose for which the data were to be used. The retention
of communications records to provide evidence for copyright infringement
does not fall within the original or directly related purpose of collection.
Continual retention of personal data by the IASPs will invariably
expose the data to increased risks of unlawful or unauthorized access
and use. In addition, it does not accord with international standard.
Careful consideration should therefore be given by the Secretary on
the retention of personal data by IASPs solely for the purpose of
facilitating the gathering of evidence by copyright owners. |
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| (ii) |
The Paper also
suggested that industry guidelines or measures be implemented to facilitate
communication between IASPs and copyright owners. The Privacy Commissioner
reminded the Secretary that any guidelines or measures implemented
should not have the legal effect of overriding the requirements of
the Ordinance and must not be used as an instrument compelling disclosure
of personal data by the IASPs. |
There was no further
development on the matter at the end of the reporting period.
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