The consultation comes less than three years since a previous consultation which took place from November 2021 to February 2022. At the time, a government spokesperson said that Hong Kong’s copyright regime was “over a decade behind international developments”. This consultation was first announced by the Chief Executive John Lee in his 2023 Policy Address.

A government spokesman said “The rapid advancement of AI technology, particularly generative AI, has induced revolutionary impacts on diverse domains and industries, as well as a number of copyright issues, arousing worldwide concerns. Major economies around the world have conducted studies and consultations on the relevant issues in recent years.”

The consultation centres on four areas:

• Copyright protection of works created by generative AI;
• Copyright infringement liability for AI-generated works;
• Possible introduction of a specific copyright exception for text and data mining; and
• Other issues relating to generative AI, including deepfakes and transparency of AI systems, which it acknowledges are not directly related to copyright.

The paper discusses the interaction with IP rights including copyright, personal data privacy as well as the spread of fake and biased information.

Exception for text and data mining

The paper explores the possibility of introducing a new and specific copyright exception to allow the reasonable use of copyright works for computational data analysis and processing, covering conventional text and data mining and the development, training and enhancement of AI models (TDM exception).

The paper says the TDM exception would help promote increased accessibility in copyright works for developing and training AI systems without the need to obtain consent from different copyright owners. It says this would help to drive and boost the development of AI technology and industry and would assist the research community. The paper says that by moving in tandem with other jurisdictions which also offer TDM exceptions, Hong Kong can maintain its global competitiveness.

The paper notes that arguments against introducing the TDM exception include the risk that it may prejudice copyright owners’ legitimate interests in exploiting their works. Existing market practice in which licensing schemes or arrangements for TDM activities are agreed contractually, may also be undermined.

The paper says that on balance however, given that most of the potential drawbacks could be balanced out by providing appropriate safeguards to copyright owners, the TDM exception should be introduced in the CO and should not be limited to non-commercial research and study. The paper notes that some overseas jurisdictions have also adopted this inclusive approach “to foster the growth of the AI industry and its associated benefits.”

Safeguards available to copyright owners could include requiring that access to copyright works was lawful, making TDM activities unauthorised if licensing schemes are available or if copyright owners have expressly reserved their rights.

How to respond

The consultation document has been uploaded onto the websites of the CEDB (www.cedb.gov.hk) and the Intellectual Property Department (IPD) (www.ipd.gov.hk).

The consultation is open until 8 September 2024. Members of the public may submit their views and relevant information by email (AI_consultation@cedb.gov.hk), fax (2147 3065) or post (Division 3, Commerce and Economic Development Bureau, 23/F, West Wing, Central Government Offices, 2 Tim Mei Avenue, Tamar, Hong Kong).

A public forum will be held on Friday 2 August 2024 at 19:30 at the Hong Kong Science Museum. Registration is available through the IPD website (www.ipd.gov.hk/en/publicforum2024/index.html) on or before 26 July 2024.

Authored by Andrew Cobden and Nigel Sharman.