1 opyright Law in Hong Kong Tina Tao Yang 杨涛 The University of Hong Kong Libraries ©

2 Outline What is Copyright ? Copyright Ordinance (Cap 528) Controversies facing copyright law 2006 Amendment Bill – latest development

3 © opyright Industrial Designs Trademarks Patents What is Copyright: a Form of Intellectual Property

4 What is Copyright ? Right given to the owner of an original work Works include: Musical works Computer software Dramatic works Artistic works Sound recordings Films Cable programs Books And More …

5 Copyright-Related Legislation Copyright Ordinance (Cap. 528) Copyright (Suspension of Amendments) Ordinance 2001 (Cap. 568) Copyright (Suspension of Amendments) Ordinance 2001 (Cap. 568) Prevention of Copyright Piracy Ordinance (Cap. 544) Prevention of Copyright Piracy Ordinance (Cap. 544)

6 Copyright Ordinance (Cap 528) 1 st local copyright law Took effect on 26 June 1997 Remains the law governing the existing copyright practice in Hong Kong after 1 July 1997

7 Features Provides comprehensive protection No registration is required Protects copyright works from all over the world Works in HK are protected in most countries and territories

8 Duration literary, dramatic, musical, artistic works 50 years after the death of the creator sound recordings, films, broadcasts, cable programs 50 years after the work is created typographical arrangement of a published editionpublished edition 25 years after the edition was first published

9 Acts Restricted copy the work issue copies of the work to the public rent copies of the work to the public where the work is a computer program or sound recordingsound recording make available copies of the work to the public perform, show or play the work in public broadcast the work or include it in a cable programme service broadcastcable programme service make an adaptation of the work or do any of the above in relation to an adaptationadaptation

10 Copyright Infringement Copyright in a work is infringed by a person who without the licence of the copyright does any of the acts restricted by the copyright ; oracts restricted by the copyright authorizes another to do so.authorizes

11 Liabilities Civil damages, injunctions, accounts Criminal (restrictive) computer software, movie, television drama or music recording.

12 Permitted Acts in Relation to Education (s38-45) fair dealing (s ); for re search and private study for criticism, review and news reporting things done for the purpose of instruction or examination (s. 41); performing, playing or showing work in course of activities of educational establishments (s. 43); recording by educational establishments of broadcast and cable programmes (s. 44); reprographic copying made by educational establishments of passages from published works (s. 45);

13 Permitted Acts in Relation to Librarians and Archivists (s46-53) For research and private study (s47-49) make and supply a copy of an article in a periodical no more than one article contained in the same issue of a periodical make and supply from a published edition a copy of part of a literary, dramatic or musical work no more than a reasonable proportion of any work; and On a singed declaration One copy per person No similar request made for the same material, at the same time and same place

14 Permitted Acts in Relation to Librarians and Archivists (s46-53) Supplies of copies to other libraries (s50) A copy of an article in a periodical (a); or A copy of the whole or part of a published edition of a literary, dramatic or musical work (b); or A copy of a sound recording or film (c) No previous copy supplied or copy supplied has been destroyed or damaged Name and address of a person entitled to authorize the making of the copy unknown (for b and c)

15 Example: HKU Libraries Document Delivery

16 Permitted Acts in Relation to Librarians and Archivists (s46-53) Replacement or preservation copies of works (s51) make a copy from any item in the permanent collection of the library or archive to preserve or replace the item in its own library; or to replace the item in another specified library when not reasonably practicable to purchase a copy of the item

17 Permitted Acts in Relation to Librarians and Archivists (s46-53) Articles of cultural or historical importance (s53) make a copy of an article of cultural or historical importance or interest and deposit the copy at the specified library or archive if the article is likely to be lost to Hong Kong through sale or export.

18 Is the copyright law a good law ? "Only one thing is impossible for God: to find any sense in any copyright law on the planet... Whenever a copyright law is to be made or altered, then the idiots assemble." - Mark Twain

19 What is a good copyright law ? Copyright holders Protect proprietary right Encourage creativity Copyright users Allow reasonable use Ensure free flow of information Copyright Law: Strike the Balance Conflicts

20 Controversies about HK copyright law Danger of protecting too much - Pendleton HK vs US vs UK Limited existing permitted acts - K.H. Pun Adverse impact on education and software industry 2001 new amendments Extended scope of criminal liabilities (suspended)

Amendment Bill – latest developments Existing Business End-User Criminal Liability Limited to four categories Applicable to educational establishments New criminal liability proposed For copying/distributing infringing copies of newspapers, magazines, periodicals and books Not applicable to non-profit educational establishments Safe harbour

Amendment Bill – latest developments Circumvention of technological measures Civil liability Make or deal with Provide services Do the act Criminal liability Commercial dealing Commercial provision of service Exemptions Research into cryptography, security testing, gaining access to parallel imported copyright works, and preventing access by minors to harmful materials on the Internet,

Amendment Bill – latest developments Parallel importation of copyright works Educational establishments or libraries will not incur any civil or criminal liability The 18-month period is shortened to 9-month

Amendment Bill – latest developments Fair Dealing Exemption of copyright infringement Proposed a list of factors to be considered by the court Permitted Acts make improvements to the existing permitted acts for education to allow more reasonable use of the copyright work. allow non-profit making establishments to produce specially adapted copies of copyright works for the use by the people with a print disability.

25 Conclusion "Earlier generations of technology... have presented challenges to existing copyright law, but none have posed the same threat as the digital age.” - John V. Pavlik, New Media Technology, 1996