The controversial Copyright (Amendment) Ordinance 2007 was gazetted on 6 July 2007. The Ordinance makes important changes to the Copyright Law in Hong Kong and will have a significant impact on businesses in Hong Kong.
MAIN CHANGES:
- The temporary criminal offence provisions relating to business
end-user possession of computer programs, movies, television dramas and musical recordings will be made permanent.
- There will be a new criminal offence relating to the copying and distribution of printed copyright works for the purpose of or in the course of trade.
- Company directors and partners will be subject to criminal liability
for the acts of the corporation or partnership attracting business
end-user criminal liability.
- There will be new civil offences relating to the circumvention of technological measures and new criminal offences relating to circumvention activities.
- A new rental right for films and comic books will be introduced.
- Liberalisation of the provisions regarding parallel imports of
copyright works.
- Supplementation and improvement of fair dealing provisions for education and public administration purposes.
BUSINESS END-USER CRIMINAL LIABILITY
The new criminal provisions regarding printed material and the introduction of criminal liability for directors and partners are likely to be of great concern to businesses in Hong Kong. It is important to note that these provisions are not yet in force. They are amongst a number of sections which will come into operation on a day to be appointed by the Secretary for Commerce and Economic Development.
The offence in relation to printed materials applies to books, magazines, periodicals and newspapers. It will be a criminal offence to:
- make an infringing copy of a work for distribution; or
- to distribute an infringing copy of a work
if this results in financial loss to the copyright owner and is done on a frequent or regular basis, for the purpose of or in the course of business. Businesses could be committing an offence if they regularly photocopy or scan newspaper or magazine articles, or extracts from books, for distribution.
There will be certain “safe harbours”, numerical limits for the number of copies that can be made without incurring criminal liability. These will be announced at a later date.
Directors and partners responsible for the internal management of a company or partnership will be responsible for the criminal acts of the company or partnership. The Ordinance provides a defence if it can be shown that the director or partner did not authorise the infringing act. It will be necessary to produce evidence to satisfy the Court that the defendant has set aside financial resources and has actually incurred expenditure for the acquisition of appropriate licences, or sufficient copies of the copyright work in question, for the use of the company or partnership. The Court will also take account of whether policies or practices have been introduced against using infringing copies and whether action has been taken to prevent the making and distribution of infringing copies. It is essential that businesses take steps to acquire licences or legitimate copies of copyright works used in their business. Reasonable copyright policies and practices must also put into place and policed.
The criminal provisions regarding business end-user possession of computer programs, movies, television dramas and musical recordings, has been made permanent. This is covered in a new section which makes it a specific offence to possess an infringing copy of a work for the purpose of or in the course of any trade or business, with a view to its being used by any person for the purpose of or in the course of that trade or business.
RENTAL RIGHT
A new rental right for films and comic books will be introduced. Previously, only the unauthorised commercial rental of computer programs and sound recordings were prohibited. Infringement of the rental right attracts civil liability. This new offence is not yet in force but will affect unauthorised commercial lending activities such as shops and private clubs renting out movies and comic books. The new rental right will not apply to existing stocks of copyright works.
PARALLEL IMPORTATION
Under the new law, it will be a criminal offence to deal in or import (for the purpose of dealing in) a parallel imported copyright work if the work is imported into Hong Kong within 15 months after its first publication anywhere in the world. Previously the period was 18 months.
Importation or possession of parallel imported copyright works by business end-users will no longer attract civil or criminal liability, unless the work is a movie, television drama, musical sound or visual recording that is intended to be played or shown in public.
The Copyright Law is Hong Kong is very complex and the new Ordinance needs to be read in conjunction with the Copyright Ordinance (Cap. 528) and the Copyright (Amendment) Ordinances of 2003 and 2004. Although certain key provisions of the new Ordinance are not yet in force, it is advisable for businesses to start reviewing their copying practices and copyright policies in light of the new law.
|
