Can the Canadian UGC Exception Be Transplanted Abroad?
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Commentators have examined the international law aspects of the new Canadian UGC exception, including its compliance with the Berne Convention and the WTO TRIPS Agreement. One issue that has not been considered much is whether this exception would serve as an ideal model for other jurisdictions that are undertaking digital copyright reform. Written for the Symposium on User-Generated Content under Canadian Copyright Law, this article uses Hong Kong as a case study to illustrate why the Canadian UGC exception, with appropriate modifications, can be and should be transplanted abroad. This article begins by discussing the efforts by the Hong Kong government to transplant copyright laws from abroad and its recent public consultation on the treatment of parody under the copyright regime. It further examines the benefits and drawbacks of legal transplants. Using the U.S. Digital Millennium Copyright Act of 1998 as a point of comparison, the article argues that the Canadian UGC exception would provide a timely and attractive model for legal transplant. This article then discusses specifically the UGC exception proposal I submitted to the Hong Kong government based on the Canadian model. Focusing on two key aspects of legal transplant modeling and adaptation the article identifies the key objections to the transplant of the Canadian UGC exception to Hong Kong, in particular those relating to the compliance with the TRIPS Agreement. The article concludes by recounting the Hong Kong government's report on the recent consultation, including its preliminary analysis of introducing a UGC exception into the Copyright Ordinance. Although this article strongly disagrees with this analysis, this Part takes seriously the government's international compliance concerns and offers seven additional modifications to further adapt the proposed transplant.
