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2008/SOM3/IPEG/015

Agenda item: 4b-iii

A Better Copyright Regime in Hong Kong, China

Purpose: Information

Submitted by: Hong Kong, China

/ 27th Intellectual Property Rights Experts’Group Meeting
Lima, Peru
15-16 August 2008

A Better Copyright Regime in

Hong Kong, China

The Copyright (Amendment) Ordinance 2007 (the “Amendment Ordinance”) passed in 2007 introducesvarious changes to the Copyright Ordinance (Cap.528). Provisions of the Amendment Ordinance comeinto operation in stages. In addition to provisions that have taken effect on 6 July 2007, some other provisionshave come into effect on 25 April 2008 and 11 July 2008 respectively.

  1. Under the provisions that have taken effect on 25 April 2008:

(a)new criminal liability is introduced against persons engaging in commercial dealing of circumvention tools or providing circumvention services on a commercial basis for the circumvention of technological measures; civil liability is also extended against persons who deal in circumvention tools or provide circumvention services;

(b)new rental rights for films and underlying works in sound recordings are introduced; and

(c)new moral and rental rights for performers are introduced.

  1. Under the provisions that have taken effect on 11 July 2008:

(a)new criminal liability is imposed on directors and partners whose organizations havedone acts attracting business end-user liability relating to possession of infringing copies of computer programs, movies, television dramas or musical (sound or visual) recordings for use in business; and

(b)new civil liability is introduced against any person who circumvents a technological measure used for copyright protection.

  1. The full text of the Amendment Ordinance and further information on the provisions that have taken effect can be viewed at:
  2. In early December 2007, a “Consultation Paper on the Provision of Additional Exemptions on Circumvention of Technological Measures” was issued. The consultation exercise was concluded in January 2008. Having considered the views collected, the Government concluded that at the moment no additional exemption on circumvention of technological measures needs to be adopted.
  3. Subsequent to the public consultation exercise on “Copyright Protection in the Digital Environment” conducted in 2007, the Government has formulatedpreliminary proposals for strengthening copyright protection in the digital environment in April 2008. They include:

(a)introducing a right of communication covering all modes of electronic transmission for copyright works, with related criminal sanctions against the breach of this right in specific circumstances;

(b)introducing a copyright exemption for temporary reproduction of copyright works by online service providers (“OSPs”), which is technically required for or enables the transmission process to function efficiently;

(c)facilitating the drawing up of a voluntary code of practice for OSPs in combating internet infringement, the compliance with which will be prescribed in law as a factor that the court shall take into account when determining whether an OSP has authorized infringing activities committed on its service platform;

(d)continuing to rely on the “Norwich Pharmacal” principles, as opposed to introducing an alternative infringer identity disclosure mechanism that is not subject to scrutiny by court;

(e)prescribing in law additional factors to assist the court in considering the award of additional damages, in lieu of introducing statutory damages for copyright infringement actions; and

(f)refraining from introducing new criminal liability pertaining to unauthorized downloading and peer-to-peer file-sharing activities.

  1. The Government invites further views from the public until the end of August 2008 in relation to the abovepreliminary proposals.
  2. Apart from the above proposals, the Government also takes the opportunityto consult the public on the possible introduction of a media shifting exception, which would provide greater flexibility and convenience for the private use of copyright works to general users. Views are sought on whether such an exception should be introduced, and if so, the scope of copyright works to be covered and the limitations or restrictions to be imposed in relation to such an exception.
  3. The preliminary proposals can be viewed at:

Intellectual Property Department
The Government of the Hong Kong Special Administrative Region
July 2008

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