Copyright Ordinance

1. What is copyright?

Copyright is a form of protection to the creators of original works of authorship, including literary, dramatic, musical, artistic, sound recordings, broadcasts and certain other intellectual works. The law gives the owners of copyright exclusive rights to deal with their works in a number of ways, such as:

• Copying;
  
  
• Issuing copies to the public;
  
  
• In the case of computer programs or sound recordings, renting copies to the public;
  
  
• Making available copies to the public;
  
  
• Performing, showing or playing the work in public;
  
  
• Broadcasting or including the work in a cable programme service; and
  
  
• Making adaptations or doing any of the above in relation to an adaptation.

In many cases, the creator will also have the moral right to be identified on his or her work and to object to distortions and mutilations of his or her work.

Like physical property, copyright cannot generally be used without the owner's permission.

In Hong Kong, copyright protection is automatic as soon as there is a record in any form of the material that has been created, and there is no official registration.

The principal legislation on copyright in Hong Kong is the Copyright Ordinance (Cap 528, Laws of Hong Kong) as amended.

2. How long does copyright last?

The protection period varies according to the type of protected work. In general, the terms of protection in Hong Kong are as follows:

• For a literary, dramatic, musical or artistic work, copyright lasts for the life of the author plus 50 years from the end of the year in which he/she died;
  
  
• For a sound recording, copyright expires 50 years from the end of the year in which it was made or, if released during that period, 50 years from the end of the year of release;
  
  
• For a film, copyright expires at the end of the period of 50 years from the end of the year in which the death occurs of the last to die of the principal director, the author of the screenplay, the author of the dialogue, and the composer of music specially created for and used in the film;
  
  
• For a broadcast or cable programme, copyright expires at the end of the period of 50 years from the end of the year in which the broadcast was made or the programme was included in a cable programme service;
  
  
• For the typographical arrangement of a published edition, copyright expires 25 years from the end of the year in which the edition was first published.

3. What constitutes an infringement of copyright?

Generally, copyright is infringed where either the whole or a "substantial part" of a work is dealt with in any of the ways for which the owner has exclusive right without permission, unless the relevant act falls within the scope of one of the copyright exceptions.

In addition, it is also a violation of copyright if any one authorizes another to do any of the acts for which the owner has exclusive right, imports or exports, sells or lets for hire, or offers or exposes for sale or hire, a copy of a work which is, and which he knows or has reason to believe to be, an infringing copy of the work.

It is also an infringement for any one to possess, exhibit in public or distribute for the purpose of, in the course of, or in connection with, any trade or business a copy of a work which is, and which he knows or has reason to believe to be, an infringing copy of the work.

A "substantial part" is not defined by the law but the courts have previously held that the test of substantiality shall be qualitative. Therefore, even a small portion of the whole work may still be considered as a substantial part.

4. Does copyright subsist in the newspaper as a whole or in the individual items of which it is made up?

Each article and photograph contained in a newspaper qualifies on its own as a work for copyright protection. Therefore, copying one single article contained in a newspaper will already constitute an infringement. Copyright also subsists in the whole newspaper by way of the compilation of these works and in the typographical arrangement of the published newspaper.

5. What are the major differences between criminal and civil liabilities?

In civil law, a private party (e.g., a corporation or individual person) files the lawsuit and becomes the plaintiff. In criminal law, the litigation is filed by the government.

In general, a losing defendant in civil litigation only reimburses the plaintiff for losses caused by the defendant's behavior. In criminal law, a guilty defendant is usually punished by incarceration in a jail or prison and/or fine paid to the government.

6. Are civil remedies the only way of enforcing copyright?

No. Certain violations of copyright attract criminal liability in Hong Kong. Please refer to Question 9 to see what activities may constitute criminal violation.

7. What are the exceptions to copyright?

There are a number of exceptions to copyright that allow limited use of copyright works without the permission of the copyright owner, such as:

• Fairing dealing for the purpose of for the purposes of research or private study. This may cover the making of a single copy of a short extract of a work or other very limited use of a work for "research or private study";
  
  
• Fairing dealing for the purpose of criticism, review or reporting current events, provided that a sufficient acknowledgement is accompanied; and
  
  
• Statutory licences to educational institutions, libraries and archives to make copies for works under certain prescribed conditions or for certain purposes.

Whether a particular dealing is a fair dealing will be determined on a case by case basis and the factors to be considered include:

• The purpose and nature of the dealing;
  
  
• The nature of the work; and
  
  
• The amount and substantiality of the portion dealt with in relation to the work as a whole.

8. What are the recent amendments to the Copyright Ordinance?

The Intellectual Property (Miscellaneous Amendments) Ordinance 2000 (the "New Ordinance") aimed at combating copyright piracy activities by widening the scope of civil and criminal liabilities provided under the Copyright Ordinance. In general, the major changes brought about by the New Ordinance were the replacement of the phrase "for the purpose of trade or business" by the phrase "in the course of, in connection with, or for the purpose of their trade or business" in certain provisions of the Copyright Ordinance. The effect was that while before the amendment a person might only commit an infringement or a criminal offence if he or she deals with the copyright work in a prohibited manner "for the purpose of trade or business" which may or seems to mean "for sale", the New Ordinance made it clear that doing the restricted act "in connection with or in the course of trade or business" will constitute an infringement or a criminal offence.

The New Ordinance took effect from 1 April 2001, but its proposed amendments to the criminal provisions have later been partially suspended pursuant to the Copyright (Suspension of Amendments) Ordinance 2001 (the "Suspension Ordinance") with effect from 1 April 2001 until 31 July 2002. The Suspension Ordinance does not affect the civil provisions. Therefore, in relation to civil liabilities, the amendments made by the New Ordinance continue to take effect.

9. What are the effects of the Intellectual Property (Miscellaneous Amendments) Ordinance 2000 and the Copyright (Suspension of Amendments) Ordinance 2001 in terms of criminal liabilities?

The combined effects of the New Ordinance and the Suspension Ordinance in terms of criminal liabilities may be summarized as follows:

• Anyone who knowingly possesses an infringing copy of computer software, a movie, a television drama or music recording for the purpose of, in the course of, or in connection with, any trade or business may be criminally liable; and
  
  
• The use of parallel-imported computer software in business is not a criminal offence.

For copyright works other than the 4 categories mentioned in the first paragraph, the criminal provisions will revert to the position before the New Ordinance took effect. This means that in respect of any copyright works including printed matters, a person may still be criminally liable if he deals in an infringing copy of a copyright work in certain restricted manners, such as making for sale or hire, importing or exporting otherwise than for his private and domestic use, possessing for the purpose of any trade or business with a view to committing any act infringing the copyright, or selling or letting for hire or distributing for the purpose of trade or business.

The maximum penalty of the offence is a fine of HK$50,000 per infringing copy and 4 years' imprisonment.

The contents of this section are intended to provide a general guide to the subject matter and you are advised to refer to the Copyright Ordinance (Cap 528, Laws of Hong Kong) or seek professional advice for specific details.