Intellectual Property Department, Hong Kong SAR Government1 WIPO Regional Symposium 16 March 2004 Copyright Issues for Educational Institutions and Libraries Hong Kong, China

Intellectual Property Department, Hong Kong SAR Government2 Hong Kong’s Copyright Law Enacted in 1997 Localized Hong Kong’s copyright protection system Modelled on UK Copyright Act of 1988 (CDPA), but modified to reflect Hong Kong’s special needs.

Intellectual Property Department, Hong Kong SAR Government3 Restricted Acts A range of acts are restricted under HK copyright law unless the copyright-owner’s permission is obtained. Typical acts more likely to take place in the teaching/library situation are: –Copying –Distributing –Performing –Making available (Internet/intranet)

Intellectual Property Department, Hong Kong SAR Government4 Use of Copyright Works in Education and Libraries ‘Permitted Acts’ in HK copyright law modelled on UK ‘fair dealing’ principles. Permitted acts reflect the common teaching/library situation in HK in the years preceding Respects Article 9 of the Berne Convention (1971)

Intellectual Property Department, Hong Kong SAR Government5 Permitted Acts and Berne Art. 9 Copyright Ordinance Division III Section 37(3): “(3) In determining whether an act specified in this Division may be done in relation to a copyright work notwithstanding the subsistence of copyright, the primary consideration is that the act does not conflict with a normal exploitation of the work by the copyright owner and does not unreasonably prejudice the legitimate interests of the copyright owner.”

Intellectual Property Department, Hong Kong SAR Government6 Effect of Section 37(3) Requires as a ‘primary consideration’ that two out of three of the Berne ‘three-step test’ are applied to all permitted act in Hong Kong’s copyright law. Guarantees that HK’s copyright law would be found consistent with Berne Art. 9 (which is also enshrined in TRIPS Art. 9)

Intellectual Property Department, Hong Kong SAR Government7 Typical Needs of Hong Kong’s Teachers (1) Classes of copyright works - –Printed artistic, dramatic, musical and literary works –Film recordings –Sound recordings –Recordings of broadcasts –Digital works on the Internet –Multimedia works on CD-Rom

Intellectual Property Department, Hong Kong SAR Government8 Typical Needs of Hong Kong’s Teachers (2) Restricted acts: –copying –printing –distributing to students in paper form –uploading to intranet/making available –downloading/permanent storage from Internet –performing in classroom

Intellectual Property Department, Hong Kong SAR Government9 Limitations of HK’s Fair Dealing Provisions No permitted acts specifically in relation to ‘making works’ available over the Internet/intranet. Law limits reprographic copying or artistic, dramatic or literary works for the purposes of instruction to a ‘reasonable extent’; teachers are left to work out for themselves what is ‘reasonable’. Existence of a licensing scheme ‘switches off’ reprographic fair dealing provisions.

Intellectual Property Department, Hong Kong SAR Government10 Typical Concerns of Copyright Owners Digital media lend themselves to illicit copying/distribution. Some students use educational networks for illegal copying/distribution of unauthorized copies of works. Copying by teachers/librarians may compete with commercial sales.

Intellectual Property Department, Hong Kong SAR Government11 Copyright Licensing Schemes in Hong Kong Licensing schemes exist for: –Copying of printed literary and dramatic works –Performance of musical works (lyrics and music) –Performance of musical recordings –Copying of newspapers and magazines Umbrella organizations may be able to assist in licensing issues for film recordings.

Intellectual Property Department, Hong Kong SAR Government12 Limitations of Copyright Licensing Schemes No licensing schemes exist for : –Internet web content, –Multimedia works on CD-Rom, –Webcast music and television. Most existing collective licensing bodies have not be authorized by their members to license copying and making available of works through intranets.

Intellectual Property Department, Hong Kong SAR Government13 Consensus Building We have brokered an agreement between the printed media industries (books, newspapers and magazines) and the educational sector on a guideline on copying and distribution of copyright works in classroom teaching. We have not yet been able to reach consensus on guidelines related to musical and film recordings, and digitization of printed works.

Intellectual Property Department, Hong Kong SAR Government14 Consensus Needed Scanning of sections of printed books/articles used in coursework and uploading to intranets for a limited period. Downloading of digitized works from the Internet and uploading to intranets for a limited period. Copying of small portions of sound and film recordings for inclusion into teaching materials (e.g. computer presentations.) Printing of digitized works from the Internet for distribution to students.

Intellectual Property Department, Hong Kong SAR Government15 Elements of Consensus Achieved Despite not having reached an overall consensus, there was broad agreement on some elements - –definitions of ‘school intranets’ –individual password access by students required –approximate time periods for storage of materials –need for teachers to explain to students about copyright protection.

Intellectual Property Department, Hong Kong SAR Government16 International Consensus Building We feel that he international community could assist by - Arranging multi-party negotiations (Identify common ground) Develop model Fair Use Guidelines Develop model e-licensing schemes Longer term : Provide technical assistance on digital rights management Implement pilot e-licensing schemes Develop an international Copyright Clearance Center

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