Paula Bronstein first visited Afghanistan in late 2001, right as the Taliban was being driven from power after the September 11 attacks. Afghanistan worked its magic on her, just as it does on many journalists. The country got under her skin. Harsh mountains, a wide sky, craggy faces, turbans and burqas— the country is so different from what we know, so foreign, that words can do it little justice. Photographs are almost the only way to prove the reality of life there.

She made the country a mission, returning frequently over the years and choosing to spend most of her time with Afghans rather than embedded with international troops. And while she has certainly documented how people die, she also shows how they live.

Bronstein’s photographs and their individual stories illustrate the larger narrative of Afghanistan and she has put together one of the richest portraits there is of modern Afghanistan—complicated, conflicted, and contradictory, but always compelling.

Buy Afghanistan: Between Hope And Fear

With the news that Pizza Hut just delivered a pie to the top of Mount Kilimanjaro, setting a new record for high-altitude PR stunts, Andrew Davison recalls his experiences in scaling Africa’s highest peak.

The 12-man team had some 50 guides, porters and cooks.

In 2014 an old friend came up with the idea of climbing Mount Kilimanjaro in Tanzania. We’ve still no idea what possessed him to come up with this idea, nor what compelled seven more of us to join him. And if motivation were ever a key component to successfully scaling Kilimanjaro, then our group were in trouble right from the start. None of us really knew why were doing this. We had no lifelong ambitions or bucket lists. Once the idea was on the table, there simply seemed no reason not to.

And so we found ourselves on an Ethiopian Airways flight from Addis Ababa to Arusha, in Tanzania, with a view of Kilimanjaro poking its head out above the clouds. Kilimanjaro at 5,895m high is the highest free-standing mountain in the world. In trekking terminology it falls into the “extreme” category of above 5,400m.

The day before departure we were given the four golden rules of climbing “Kili”: have the right equipment, poli, poli (walk slowly), drink lots of water (5 litres per day), and maintain a positive mental attitude.

The following morning we’re driven to the Londorossi Gate for registration, and then on to the edge of the Shira Plateau at a height of 2,800m, from where we will start. We’re introduced to the army of around 50 guides, porters and cooks that are required to get the 12 of us up the hill and down again.

The ice crystals on the outside of the tent in the morning are testament to just how cold it is, but it is clear with a bright blue sky

Walking across the Shira Plateau is easy if unspectacularly flat. We were already in poli poli mode. Surprisingly it’s difficult to actually find the rhythm to walk that slowly. The porters, who have lagged behind to finish the packing, shortly come racing past.

After three or four hours of gentle plodding, we arrive at the first campsite, at 3,550m, where the porters have already set up our tents. We’re each given a bowl of hot water for washing and introduced to the mess tent, where we’ll eat all our meals, drink endless cups of tea and coffee.

The food is surprisingly good given the location, a combination of carb-heavy potatoes or pasta, with a meat or veg sauce and a breakfast of porridge – ideal for slow-release of energy needed for hiking.

The ice crystals on the outside of the tent in the morning are testament to just how cold it is, but it is clear with a bright blue sky. The second day’s walking takes us further across the plateau, before taking a diversion to the summit of Shira Cathedral, a huge buttress of rock surrounded by steep spires and pinnacles. The mist surrounding the rock creates a ghostly effect with the tree moss – old man’s beard – hanging like damp Halloween cobwebs off the trees. This extra climb is part of the acclimatisation process and has induced some altitude sickness among our group.

Day three is a steady but reasonably easy climb up from the moorland of Shira Plateau and onto the broad upland desert beneath the Lent Hills. We’re at the campsite at Moir Hut at 4,200m in time for lunch, then have another acclimatisation walk in the afternoon. The peak affords a spectacular view over the plateau, with the clouds on either side curling up over the edges, and creeping across the plain towards each other like two armies moving into battle.

Day three is a steady but reasonably easy climb up from the moorland of Shira Plateau and onto the broad upland desert beneath the Lent Hills

The following morning sees us ascend over numerous lava ridges across a dry, dusty moonscape, to the next camp at the volcanic plug that is Lava Tower (4,550m). Another acclimatisation walk takes us to Arrow Glacier, which seems to be in a rather sorry plight,. Our head guide, who has been climbing Kilimanjaro for 15 years, can recall a time when it was probably twice the length it is now. Research has indicated that the glaciers could have retreated entirely from Kilimanjaro by as early as 2020.

Some of the Kilimanjaro team struggled with the altitude.

Day five sees us descend from Lava Tower into the Great Barranco Valley and as the vegetation changes once again we find ourselves walking among large groundsel trees, their palm-like trunks topped with spiky leaf rosettes, and giant lobelia, a cactus-like flowering plant. In front of us now stands the Barranco Wall, a steep and exposed ascent of around 300m. The wall is near vertical, and while some of the porters will stroll up it barely using their hands, for most of us it represents the most physically challenging effort so far.

There is one more sharp descent to negotiate, and an equally sharp ascent, and then we’re at Karanga Valley campsite, at a height of 4,000m, which must make for our toughest day so far.

This is followed by a very short day; a short but steep climb out of Karanga Valley, onto a relatively easy path across a wide, shallow valley, gradually gaining altitude until we reach the Barafu Hut at 4,600m in time for lunch.

That night is to be our summit night – what this trek has been all about.

We’re in the mess tent for dinner at 4pm, prior to which we’re informed that one of the porters has succumbed to altitude sickness and needs to go down, despite having scaled the mountain countless times before. Unfortunately one of our own party has also decided he can go no further. He’s been struggling with fluid on the lungs for a few days but has now reached a point where the guides advise him not to continue. It’s a tough decision but undoubtedly the right one. Dinner this evening is a subdued affair.

We go to bed at 6pm. And wake at 11pm. And put all our clothes on, literally. And then we’re off.

As we leave camp there’s a steady procession of headlamps weaving their way up the mountain, like a line of fire-flies. And right from an early stage there are people being brought down, having succumbed to the altitude, the cold or simply exhaustion, including a member of our own team.

We walk in silence. At the very time you need some banter to sustain you, the well is dry as people struggle with the thin air, the cold and the relentless plodding. I’m fine for a few hours and even began to think that this Kilimanjaro lark is quite easy. However, at around 4am, as the tiredness and the altitude kick in, it suddenly goes from being a challenging but enjoyable experience to a brutal one. The last two hours or so to Stella Point are absolutely draining.

Stella Point comes into sight but I can’t summon the strength to make a final triumphant burst to the top and it remains the same slow plod for every last step.

Day five sees us descend from Lava Tower into the Great Barranco Valley and as the vegetation changes once again we find ourselves walking among large groundsel trees, their palm-like trunks topped with spiky leaf rosettes, and giant lobelia, a cactus-like flowering plant. In front of us now stands the Barranco Wall, a steep and exposed ascent of around 300m

It takes just a few moments to get our breath back, slow our heart rates down, and have a cup of tea. Then we are off again. To have reached Stella Point at 5,735m is to have climbed Kilimanjaro; the point at which you get a certificate. But there is another point, the highest point, Uhuru, at 5,895m, another 160m, and 45 minutes, up.

The team perfects the poli poli (walk slowly) rule on the way up.

Another of our team has been struggling all night, needing regular breaks, occasional vomits, and guide’s assistance. He’s ready to call it quits and go back down. But the guides think he can make it and push him on.

Finally, Uhuru Peak. Below us lies the 2.5km wide caldera, looking exactly as a volcanic crater should; the perfectly round inner Reusch crater like a valve just waiting to be released.

Then it’s time to go. After just ten minutes or so at the top it’s time to go all the way back down again. This time at least there is no poli poli. This time it is go as fast as you like.

Our descent takes a couple of hours, slipping, sliding, half running, half walking, down to Barafu Camp, where we’re allowed to sleep for a while until the last of our group completes their descent. Then we endure a further 2-3 hour descent to Millennium Bivouac, our final camp and final night on the mountain. The last day is then a long descent all the way back to Mweka at 1,650m, by which time most people can think only of a hot shower and a thirst-quenching beer.

And that was Kilimanjaro. Several days of gentle walking followed by one night of hell… and no pizza.

By Anthony Paul, former FCC president and former editor-at-large Asia Pacific for Fortune magazine

Roy Rowan in Saigon in 1975.

Wars are usually long periods of boredom punctuated by brief episodes of sheer terror. When the fighting ended in Saigon in April 1975, most of the overworked correspondents escaping from the North Vietnamese forces’ advance, myself included, wanted a respite – a return to home and family, perhaps a long cool drink or 10, and, most importantly, as much distance as possible from anything to do with the conflict.

But not Roy Rowan, Time magazine’s last Saigon bureau chief. A couple of weeks after Saigon fell, news reached Hong Kong of what would prove to be the last combat incident of the Indochina War: Khmer Rouge seizure of an American container vessel, SS Mayaguez. In the ensuing 3-day action, 38 Americans and an unknown number of Cambodians died.

“This story will soon be over,” Roy told me in Hong Kong, “but there’s a book in this.” He had been regretting that at age 55, after 28 years in journalism, he had never had time to write more than news reports. With six weeks’ vacation owed by Time, he was soon off on an intensive research swing interviewing Asia-based survivors and in Washington, President Gerald Ford and Secretary Henry Kissinger. His first book soon appeared, The Four Days of Mayaguez. Nine more books were to follow. As this record of his career will tell you, there were few colleagues able to match his energy.

Roy Rowan died September 13 in Greenwich, Connecticut, aged 96. His passing was no ordinary event. He was the last of what was once a large band of legendary American journalists who covered the Chinese civil war, by-lines that included such other members of the FCC in Hong Kong and Shanghai as Robert Shaplen (Newsweek and the The New Yorker), Tillman Durdin (New York Times), Teddy White  (Time-Life), Ernest Hauser (Reader’s Digest) and Henry Hartzenbusch (Associated Press).

Roy’s life spanned most of the major developments in East Asia in the century’s second half. China came first. He and Life photographer Jack Birns had stood on a rocky hill late in 1948 with General Li Mi of the Nationalist 13th Army Group watching the war’s climactic Battle of Huai-Hai unfold to a People’s Liberation Army victory and within a year the founding of the People’s Republic. In 1997 he returned to that same hill with his wife, Helen, a former Life picture editor, detouring from Fortune magazine’s coverage of the Hong Kong handover. There they watched quarry workers turn the hill into gravel to be used to build a forest of new skyscrapers in nearby booming Xuzhou. “I remember [a China of] men and women substituting for beasts of burden: pulling plows, pushing irrigation pumps, and struggling with heavy millstones to grind their wheat,” he would later write. “And I’m stunned at how most of that primitive, 4,000-year-old hand work gave way to modern production in just my lifetime.”

Roy Rowan interviewing President Ford in the White House.

Born in New York City in 1920, Roy graduated from Dartmouth in 1942, was immediately drafted into the army, rose to major, and spent two years in New Guinea and the Philippines. In search of continuing adventure, he joined the UN Relief and Rehabilitation Administration in China. While distributing food and clothing to peasants caught up in China’s civil war, he filed reports and photographs on spec to Stateside publications. A file “The Stadium of the Skulls” – photos of the remains of 5,000 Chinese massacred by the Japanese – led to his hiring by Life, then edited by founder Henry Luce. The pro-Nationalist son of an American missionary in China, Luce used his magazines to influence Washington’s China policies. Roy and Birns produced articles on what Roy described as “sham battles being fought by the Nationalists,” helping Luce face the war’s reality.

Shortly after Shanghai fell to the People’s Liberation Army in 1949, Roy moved Life’s Shanghai bureau to Hong Kong. His papers, held by Hartwick College of Oneonta, New York, record his eyewitness involvement in the next five industrious, tumultuous decades: the Malayan Emergency, Korean War, Japan’s resurgence, assignments in Italy, Germany and Chicago, then back to New York as one of Life’s assistant managing editors.

His editing team was just finishing the November 29, 1963 issue of Life when word came of President John F. Kennedy’s assassination. Within two hours, Roy had flown to the Chicago printing plants, where he remade the magazine using the now-famous Zapruder movie film, the only photo record of the president being shot.

In 1969, Roy began working on magazines he had suggested to Time Inc. On the Sound and On the Shore were dedicated to the region he loved so much, the waters around Long Island Sound and Chesapeake Bay. But when Time Inc.’s backing ultimately fell through, the publications eventually folded, and the company saved Roy from unemployment by retrieving their old warhorse. In November 1972 he returned to Hong Kong as Time’s bureau chief, based in Hong Kong but with responsibilities for all Time’s Asia-Pacific editions. The Indochina story loomed largest. Roy wrote more than 50 articles covering the war and was in Saigon for the hurried helicopter evacuation.

In 1977, Roy moved from Time to the Board of Editors as a senior writer at Fortune. Between then and his “retirement” in 1985 he wrote 65 major articles for the magazine. From 1998 to 2000, Roy served as president of the Overseas Press Club of America. When his term ended, the club established a Roy Rowan scholarship for aspiring young journalists. Meantime, he worked on a string of books. These included “The Intuitive Manager”, which drew on numerous interviews with American CEOs to explain how to turn a “hunch” into a well-calculated management step, and “First Dogs: American Presidents and Their Best Friends”, made into a Discovery Channel documentary. “Intuitive Manager” sold 350,000 copies, was translated into 10 languages and formed the basis of innumerable videos and tapes.

Roy Rowan in Hong Kong in 1949.

Roy’s colleagues remember him as a no-nonsense editor. Once in Hong Kong he assigned a photographer-correspondent team to cover a story about an insurrection in the Philippines. Lacking a frontline pic, the photographer apparently talked the correspondent into dressing up as an armed guerrilla prowling through the jungle. Poring over the contacts, Roy detected the hoax. New York recalled both staffers, who were summarily dismissed.

One likes to think that current print publications, buffeted by the near-disastrous draining away of ad revenues by television and the Web, would handle the costs of this failed assignment in the same way. Though the fact in no way detracts from their accomplishments, Roy and his colleagues were fortunate to be print journalists whose careers coincided with a quite remarkable flowering of wildly successful US publications after the First World War, e.g. Reader’s Digest (1922), Time (1923), The New Yorker (1925)  and Newsweek (1933). Though I’d like to think otherwise, It’s unlikely that we’ll see again such an abundance of well-rewarded opportunity for foreign correspondents.

Despite Roy’s travels and home-base disruptions, Roy and Helen raised a notably successful, loving family of four sons. Photographers Robin Moyer and David Burnett of the FCC, who joined Roy on several assignments, recall his camaraderie and his tolerance, even for journalists born long after Roy had begun his climb and the events he covered were all but ancient history.

Hong Kong is once more home to a local branch of the international PEN organisation for writers, writes Vaudine England.

Some of the founding members of PEN Hong Kong in September 2016. Photo: PEN

Few writers may be aware of the role of Marilyn Monroe in the fight for freedom of creative expression, or indeed her connection with the opening of a new flank in that fight in Hong Kong.

Such was the allure of Monroe that her fame had spread far and wide. It even spread to Nigeria’s head of state, General Yakubu Gowon, during the civil war over Biafran secession back in the late 1960s.

This matters because the general had decided a local playwright, the then unknown Wole Soyinka, should be executed.

The international group for poets, authors, essayists, editors (and even journalists), PEN, was then led by another playwright, the somewhat better-known Arthur Miller. As PEN president, Miller wrote a letter to Gowon which a friendly businessman delivered directly.

The general’s key question was: is this the Arthur Miller who married Marilyn Monroe? On being assured that indeed he was, Gowon did as suggested by Marilyn’s man, and let his prisoner go.

Wole Soyinka went on to become one of the world’s most eminent poets and playwrights, winning the Nobel Prize for Literature in 1986.

Now whether this was all due to Marilyn remains moot. The point is that PEN, an international writers’ group in existence since 1921, acts to celebrate, promote and extend freedom of expression.

It also campaigns directly on behalf of writers endangered by governments, statelessness, imprisonment and other hazards.

As we now know in Hong Kong, those hazards include kidnapping, detention and interrogation without charge across the border, and concerted efforts to destroy livelihoods, ideas, and independent thought.

It was FCC member Fred Armentrout who was the leading light of the English-speaking PEN, along with Saul Lockhart and others.

How apt, then, that the Hong Kong branch of PEN has just been revived after more than a decade of somnolence. The new, bilingual Hong Kong branch of PEN was launched at the FCC on November 13, as part of this year’s Hong Kong International Literary Festival.

To be historically accurate, the previous PEN group was called ‘English-speaking PEN’ in Hong Kong. There was also a ‘Chinese PEN’ here which was often bogged down in exactly which China they meant.

“The English-speaking PEN reached its zenith during the period of forced repatriation of Vietnamese boat people. There were writers in the camp and we were very active in getting about a half-dozen of them refugee status, as was the FCC in at least one case (Saul Lockhart led the charge there),” wrote Fred Armentrout, when we asked for his sage advice.

It was FCC member Fred Armentrout who was the leading light of the English-speaking PEN, along with Saul Lockhart and others. Now chaired by Jason Ng, several more FCC members have helped to found the new group — Steve Vines, Vaudine England, Ilaria Maria Sala, Kate Whitehead, Cathy Holcombe… the list of names continues.

However, as the Marilyn story shows, this is not just another press freedom group. PEN focuses on a broader definition of freedom of expression; it has UN recognition, and a roll-call of past presidents from Vaclav Havel to Margaret Attwood. People PEN has tried to help include writers as varied as Salman Rushdie, Ken Saro-Wiwa, Anna Politkovskaya and Hrant Dink. PEN originally stood for Poets, Essayists and Novelists, and then grew to include playwrights, editors, publishers, academics and, importantly for us, translators.

Our new Hong Kong group includes all of the above. It is multi-racial and bilingual, Hong Kong-based, but of course alert to how the politics around us affect freedom of creative expression here. It’s hard not to be increasingly alarmed by this environment in which self-censorship has become the norm and newspaper editors are chopped by machetes. It is now acceptable in some circles to submit to career-defining constrictions on our intellectual life.

“The Chinese government has for many years perceived Hong Kong independent publishing as ‘politically harmful’. It has strategically targeted Hong Kong publications and implemented ‘strike campaigns’, renewed annually. The Causeway Bay Book Store incident was just one highly visible episode in the ongoing campaign,” notes PEN Hong Kong founding member, Bao Pu, of the independent publishers, New Century.

“This long-running campaign has demonstrated its effectiveness after so many years. The sales of books about mainland politics has dropped, and the case of the Causeway Bay Book Store has sufficiently deterred not only mainland buyers and Hong Kong book stores, but even many in Hong Kong’s printing industry from books on politically sensitive topics on mainland China or Hong Kong,” he said.

It is the politics around us that now stops some publishers from publishing, some book shops from selling, some printers from printing, and thus all of us from reading a full range of literature. This cuts directly at our ability to have fun with new ideas – and yes, we have a sub-group in our new PEN which is firmly focused on rediscovering that sense of fun.

Marilyn Monroe, then PEN leader Arthur Miller’s wife, had a role to play in saving the life of a future Nobel Prize for Literature winner.

So it was with PEN when it was founded in London in 1921. It had begun as a dining club for poets and authors who felt discombobulated after World War One. The Charter of PEN which stands firm to this day, was then forged in the dark atmosphere of threats, persecution and mass murder of World War Two. By 1939, PEN member centres included Argentina, Australia, Bolivia, Brazil, Canada, Chile, Colombia, Egypt, India, Iraq, Japan, Mexico, New Zealand, Palestine, Uruguay, the US and others. All the Scandinavian countries were accounted for in the membership, as well as several countries in Eastern Europe. Basque, Catalan and Yiddish centres were represented, too. Today the vast majority of PEN International’s 145 centres are outside Europe.

For PEN, freedom of expression and literature are inseparable. Indeed, it’s an idea present at the centre of the many cultures of the world, not simply the West. PEN has long been unique in bringing writers together regardless of culture, language or political opinion. Initially, it saw itself as “above” politics. It was the Nazi repression of writers — and the dissent within PEN of such great names as Bertolt Brecht, Alfred Döblin and Robert Musil – that engendered a more nuanced approach.

The British novelist HG Wells, who became PEN’s president in 1933 following John Galsworthy’s death, led a campaign against the burning of books by the Nazis in Germany. When the German branch of PEN failed to protest at the book-burning and even tried to stop a Jewish writer from speaking at the PEN Congress, it had to be expelled.

It was out of events like these that parts of the PEN charter were written: “Literature knows no frontiers and must remain common currency among people in spite of political or international upheavals. In all circumstances, and particularly in time of war, works of art, the patrimony of humanity at large, should be left untouched by national or political passion..

There are lines in the sand for all of us, no doubt differing from person to person around the bar.

In the revived PEN of Hong Kong, we aim to touch up that line with neon lights, with book-readings, literary celebrations and even, yes, the odd campaign. We aim to keep that line shining bright, and you are very welcome to join us.

Visit the PEN Hong Kong website here

Anson Chan knows of what she speaks as one of the very few people who have served as both an Official and Unofficial Legco member.

Chan, who has been a regular speaker at the Club since the 90s when she was Chief Secretary before and after the handover, spoke about what to do with the troubled Legco and the importance of the Legco elections.

“In the four years since the last Legislative Council elections, our way of life, supposedly protected under the mantra of ‘One country, Two systems’, has faced unprecedented challenges in the form of a systematic undermining of our core values and freedoms.”

Chan then listed incidents to illustrate what she calls “the assault on freedom of the press,” including outspoken political commentators being sacked, journalists attacked on the streets, and the case of the missing booksellers – which she said was “in flagrant breach of the Basic Law”. Chan also mentioned a threat to academic freedom at HKU and the ban on independence debate in schools.

“The really scary thing is that these developments are now coming so thick and fast, they no longer even seem to cause surprise,” she said. She warned Hongkongers not to be “accustomed to a new normal” when it came to the dishonesty and lack of accountability of government officials.

Chan said the legal basis for banning pro-independence candidates from standing for election was “dubious at best and likely to be the subject of a legal challenge”. She called the process “arbitrary and politically biased”.

She also said what fuelled the localist and pro-independence movements was a feeling of powerlessness that arose from “the absence of full universal suffrage and the ability to vote out officials”, warning that such sentiments will only grow as the government attempts to stamp them out.

“The frustration on the part of young people… they don’t want mainland culture and values to creep into Hong Kong,” Chan said. She also said that the government should have allowed for an open discussion about the topic, rather than “using a sledgehammer”.

In the four years since the last Legislative Council elections, our way of life, supposedly protected under the mantra of ‘One country, Two systems’, has faced unprecedented challenges in the form of a systematic undermining of our core values and freedoms

“I think there are very few people in Hong Kong who are actually pressing for independence. It almost leads me to believe that the Chief Executive has a hidden agenda… to create such havoc in Hong Kong that he has more reason to persuade Beijing that a strong pair of hands is needed to keep Hong Kong in control,” she said.

She added there was a need to “find a pathway to a more mature party political system” which could work with a democratically elected Chief Executive. Chan called for a more effective relationship between the Legislative Council and Executive Council.

Ahead of the elections, Chan said it was crucial for the pro-democracy camp to maintain its veto power, or the pro-government lobby will be able to push forward “unwelcome constitutional changes” such as last year’s political reform package, or “introduce self-serving amendments to LegCo Standing Orders.”

Chan then urged everyone to vote to ensure the legislature will contain “as many men and women as possible who are of high moral principle, who embrace the values and freedoms that we cherish and who, above all, are prepared to stand up and defend them.”

When Chan, who retired from the Civil Service in 2001 after 39 years, announced she was standing for the Hong Kong Island constituency in 2007, the FCC was one of the first places she spoke at… and where she first aired her increasingly “radical” positions about the future of Hong Kong.

Hong Kong’s efforts to reform copyright law towards the US-based “fair-use” treatment of copyright versus the “fair-dealing” approach stall, writes Jonathan Hopfner.

Hong Kong’s efforts to reform copyright law have stalled

Hong Kong might be one of the most wired cities on the planet, but its copyright legislation remains a product of the pre-Internet era – a situation that has ramifications for businesses, consumers of web content and an increasingly digitalised media alike.

The failure to update the city’s Copyright Ordinance certainly isn’t for lack of trying. First enacted in 1997, the Ordinance has been subject to successive amendments that attempted to clarify matters such as the type of work that can result in criminal liabilities if copyright is infringed, to the number of copies of a publication that can be made or distributed without constituting an offence.

But the most recent attempt to update the law, which began in 2013, sparked massive controversy and was ultimately abandoned by the government earlier this year. Whether this can be viewed as a victory or setback for freedom of expression (and consequently the press) in Hong Kong is still a matter of considerable debate.

In essence, the Copyright (Amendment) Bill 2014 was an attempt to make the Ordinance more technologically neutral, and to balance the need to protect the interests of copyright owners with the right to free speech. It extends the rights copyright owners have over their work to the digital realm and also establishes a “safe harbour” for Internet providers that limits their liability for copyright violations occurring on their networks, provided they take reasonable precautions – changes that are broadly in line with international practice.

More controversial was an attempt to safeguard free speech by extending the right to use copyrighted material without fear of criminal or civil liability if it is for the purposes of – significantly for journalists – reporting or commenting on current events; quotation; and/or “parody, satire, caricature and pastiche”.

In the eyes of the administration and much of the business and legal community, this was a relatively generous set of conditions that, in the words of a Hong Kong-based former intellectual property counsel to the US Senate, Stacy Baird, likely constituted “the broadest free speech exception in copyright law anywhere in the world.” Critics, however, including “netizen” groups and most of the city’s democratic-leaning lawmakers, argued the exceptions were ambiguous and did not go far enough.

Among the key demands of the bill’s opponents were a broader exception for user-generated content (UGC), which includes mash-ups of copyrighted images or video footage, or fan versions of music videos or songs disseminated on social media. Critics also called for measures to prevent companies from overwriting these exceptions in business contracts.

Fair use v fair dealing

More broadly, the bill’s detractors have argued that by limiting “legal” copyright infringement to a few specific categories like parody and reporting, the government is trying to confine the scope and format of debate. In essence this is a push for Hong Kong to move towards the US-based “fair-use” treatment of copyright versus the “fair-dealing” approach generally adopted here, in Commonwealth countries such as Australia, Canada and the UK, and much of Europe.

Protesting against Hong Kong’s proposed copyright law, which some Netizens claim is the Article 23 of the Internet.

While the basic principle of both approaches is the same – that people should be free to use copyrighted material in certain circumstances – fair dealing is generally viewed as more restrictive, since it limits permissible copyright infringements to specific categories stated in relevant legislation. Under fair use, on the other hand, broader principles or factors are used to judge whether the use of copyrighted material is indeed “fair”.

In the US context, these factors include whether the copyrighted material is used for commercial purposes, the amount or portion of copyrighted work used, and how the use may impact a copyrighted work’s market value. This approach obviously gives the courts more leeway in deciding what constitutes acceptable infringement.

The Hong Kong government has claimed that shifting to fair use would constitute a far more ambitious overhaul of the territory’s intellectual property regime than was envisioned in the last set of amendments to the Ordinance. It was also reluctant to apply a general exception for UGC, noting the definition of such content is ambiguous and that few jurisdictions have adopted exclusions of this kind. In the current political climate these debates proved impossible to resolve and in March the bill was moved to the bottom of the legislative agenda, effectively suspending it indefinitely.

Incidents like the recent bookseller disappearances, Hong Kong’s declining ranking in press freedom indexes and a series of high-profile attacks on journalists show there is every reason to be concerned about the right to free speech in the city, and wary of government attempts to subvert it.

But there are also indications that the opposition to the Copyright (Amendment) Bill may have overshot the mark.

First, it must be remembered that any attempt to challenge an individual or organisation’s rights to use copyrighted material under the exceptions outlined in the bill would ultimately end up before the city’s courts, where, given the city’s own laws and international precedent, it would face significant scrutiny. As Baird has pointed out, no lawsuit of this kind has been brought against an individual in Hong Kong’s history – presumably for the reason that such a case would prove very difficult to win.

Also, one need only look at the US for proof the fair use stance is far from immune to legal challenges or debate. A long-running case brought by Universal Music Group against a mother who uploaded a video to YouTube of her toddler dancing to a (Universal-owned) Prince song resulted recently in a landmark decision from the 9th Circuit Court of Appeals, which firmly established the obligation of copyright owners to consider the fair use concept before ordering content creators or distributors (like YouTube) to remove unauthorised work.

The decision was hailed by free speech advocates, but agencies such as the Reporters Committee for the Freedom of the Press noted it should be seen as a double-edged sword for journalists. It affirms their rights to use copyrighted content in the course of their activities, and makes it more difficult for companies to use takedown notices as a means to target negative press. However, it also sets a higher bar for journalists (and publications) seeking to protect their own work when it is reproduced or used in an unauthorised way.

Similarly, it is hard to see the current situation in Hong Kong as a victory for either side of the copyright battle – or for reporters. The collapse of the copyright bill had more to do with a general lack of trust in the current administration, and the city’s polarised legislature, than any serious flaws in the updated legislation.

The end result is that the regime governing the replication and dissemination of copyrighted information, particularly via online and social media channels, is incomplete and ambiguous. This may make it easier for journalists to use this information in the course of their duties without fear of repercussions. At the same time journalists and their employers may have little in the way of recourse when their intellectual property is reproduced online without due credit or citation; or manipulated in a way that may damage their reputation.

A new, less fractious and (hopefully) more credible administration may yet resurrect the bill in some form and bring copyright legislation in line with technological realities and the highest international standards. In the meantime, reporters, bloggers and media companies alike will have to labour in an uneasy state of limbo.

Prince defended his copyright

In spite of the 9th Circuit Court of Appeals ruling that copyright owners should “consider the fair-use concept before ordering content creators or distributors to remove unauthorised work, Prince earlier this year would have none of it.

During Prince’s last tour, he continued his staunch opposition toward fan recordings of his performances. Virtually all footage from the tour’s concerts, including brief 15-second Instagram clips, have been taken down.

Fans were not happy, particularly those who fail to secure tickets to shows that typically sell out within seconds.

However, Prince eventually responded to fans in a series of since-deleted tweets. One fan wanted to know why there was no video of his concerts on YouTube? His answer: “Since YouTube doesn’t pay equitable licensing fees, isn’t that a nonsensical question?” And further: “Shouldn’t your concerns be directed at YouTube and not here?”

In a landmark copyright decision, the US Court of Appeals for the Ninth Circuit affirmed in 2015 the 2008 ruling of the US District Court for the Northern District of California, holding that copyright holders must consider fair use in good faith before issuing a takedown notice for content posted on the Internet.

Stephanie Lenz posted on YouTube a home video of her children dancing to Prince’s song “Let’s Go Crazy”. Universal Music Corporation (Universal) sent YouTube a takedown notice pursuant to the Digital Millennium Copyright Act (DMCA) claiming that Lenz’s video violated their copyright in the “Let’s Go Crazy” song. Lenz claimed fair use of the copyrighted material and sued Universal for misrepresentation of a DMCA claim. In a decision rejecting a motion to dismiss the claim, the district court held that Universal must consider fair use when filing a takedown notice, but noted that to prevail a plaintiff would need to show bad faith by a rights holder.