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Function or Industrial Articles

Copyright may protect the drawing from which an article is made, but it cannot prevent the manufacture of purely industrial articles.

However, articles that are replicated by an industrial process, but which are of an aesthetically pleasing appearance may be protected by copyright where the article itself is an artistic work. This includes sculptures as well as works of artistic craftsmanship. Where it is possible to obtain a registered design for such articles, the copyright term will be reduced to match the term of protection for registered designs.


Looking for Copyright Permission

Copyright is a type of intellectual property. Like physical property, it cannot usually be used without the owners permission. Of course, the copyright owner may refuse to give permission for use of their work.

Fair amount of uses (e.g. fair dealing for the purposes of research, review and news reporting; reasonable extent for the purpose of instructions or examination) may fall within the scope of one of the exceptions to copyright, but if you want to use a copyright work, you will usually need to approach the copyright owner and ask for a licence to cover the use you require. A licence is a contract between you and the copyright owner and it is for both parties to negotiate the terms and conditions, including the payment or royalty for the use. There are no rules in copyright law governing what may be acceptable terms and conditions might be relevant to licence agreements.

Sometimes copyright owners act collectively to license certain uses and collective licensing bodies can be approached for a licence. In particular, collective administration bodies exist for licensing certain uses of music and sound recordings, printed material

It is important to remember that just buying or owning the original or a copy of a copyright work does not give you permission to use it how you wish. For example, buying a copy of a book, CD, video, computer program etc only gives you the property right on the chattel. It does not usually gives you the right to make copies (even for private use), play or show them in public. Other everyday uses of copyright material, such as photocopying, scanning, downloading from a CD-ROM or on-line database, all involve copying the work so permission is generally needed. Also use going beyond an agreed licence will require further permission.


Fair Dealing for reseach or private study

"Fair dealing" with a literary, dramatic, musical or artistic work, for the purposes of research or private study does not infringe any copyright in these works or the typographical arrangement of published editions of these works.

Fair dealing has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing. So, it is probably within the scope of the above fair dealing exception to make single photocopies of short extracts of a copyright work for the purposes of research or private study. It may be possible to ask a librarian to copy a short extract from a copyright work for you if you are not able to do it for yourself in a library.

The research and private study exception is a little different for databases protected by copyright. In this case, fair dealing is only possible for research for a non-commercial purpose or private study. However, not all copying from a database will infringe copyright in the database - this will depend on whether a substantial part of the database is being copied - but the contents of a database may also be protected by copyright, and extracts of the contents can, of course, only be copied if this use falls within the scope of the general "fair dealing" exception.


Fair Dealing in criticism, review or news reporting

In each case the exception is limited by the condition that there must be "fair dealing". A long extract of a work cannot be used for the purposes of criticism, review or news reporting. Use of more than this will need the permission of the copyright owner. Slightly different conditions apply to criticism and review and news reporting:

Fair dealing with a work for the purposes of criticism or review of that or another work must include a sufficient acknowledgement.

Fair dealing with a work for the purpose of reporting current events also requires sufficient acknowledgment, except where the reporting is by means of a sound recording, film or broadcast or cable programme.


Educational Establishment

Only the universities and schools defined in Schedule 1 of the Copyright Ordinance is entitled to be known as educational establishment. This includes the major schools, post-secondary schools and universities.


Private Use: fair dealing, time-shifting recording, copying artistic works in public, computer program backup

The following activities (private or personal use) do not infringe copyright:

"Fair dealing" with a literary, dramatic, musical or artistic work for the purposes of 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, so long as it falls within the scope of the term "private study". This includes study purely for personal enjoyment.

A recording of a broadcast or cable programme can be made for private and domestic use to enable it to be viewed or listened to at a more convenient time. This time-shifting exception does not cover the making of recordings for placing in a collection for repeated viewing or listening.

Drawing, taking a photograph or making a film of buildings or sculptures and works of artistic craftsmanship in a public place or in premises open to the public.

Making a necessary back up copy of a computer program where you are a lawful user.


Moral Rights of Author

Moral rights are owned by the authors of literary, dramatic, musical and artistic works and to film directors:

· Right of Attribution: to be identified as the author of the work or director of the film in certain circumstances, e.g. when copies are issued to the public
· Right to Object Derogatory Treatment: to object to derogatory treatment of the work or film which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director

Moral rights are serve the purpose of protecting the personality and reputation of authors. These are called non-economic rights.

The right to be identified cannot be exercised unless it has been asserted, i.e. the author or director has indicated their wish to exercise the right by giving notice to this effect (which generally has to be in writing and signed) to those seeking to use or exploit the work or film. Moreover, both the right to be identified and the right to object to derogatory treatment can be waived by the author or director.

Moral rights are not assignable. There are also several situations in which these rights do not apply:

· computer programs
· where ownership of a work originally vested in an author's employer
· where material is used in newspapers or magazines
· reference works such as encyclopaedias or dictionaries

Authors of literary, dramatic, musical and artistic works and film directors are given the moral right not to have a work or film falsely attributed to them.


Enforcement of Copyright

Copyright is essentially a private right so decisions about how to enforce the rights, that is what to do when the copyright work is used without permission, are generally for the copyright owner to take. Where the work has been used without permission and none of the exceptions to copyright apply, copyright is said to be infringed. Although the copyright owner is not obliged to do so, it will usually be sensible, and save time and money, to try to resolve the matter with the party who has infringed the copyright. Indeed, in some cases it may be necessary to demonstrate to a court that the plaintiff tried to solve the matter by mediation or arbitration if the plaintiff wishes the court to consider awarding you the best available remedy including an award covering your costs.

If the copyright owner cannot resolve the issue with the other party, then going to court may be the right solution, but it would be a good idea to seek legal advice at an early stage, and certainly you should consider this very seriously before going to court. One of the many organisations representing copyright owners may also be able to give you advice, or sometimes act on your behalf if you are a member.

Where a copyright owner brings a case of copyright infringement before the courts, a full range of civil remedies are available, such as:

· injunctions served against the infringer or alleged infringer (to stop that person making further infringing use of the material);
· damages (usual damages and additional damages) for infringement awarded to the copyright owner;
· orders to deliver up infringing goods to the copyright owner.

Deliberate, intentional or wilful infringement of copyright on a commercial scale may give rise to additional remedies.


Economic Rights of Copyright Owners

Copyright owners generally have the right to authorise or prohibit any of the following things in relation to their works. The Copyright Ordinance refers as 'restricted acts':

1. copying the work in any way. For example, photocopying, reproducing a printed page by handwriting, typing or scanning into a computer, and taping live or recorded music are all forms of copying

2. issuing copies of the work to the public. However, once a copy has legally been put into circulation anywhere in Hong Kong, this right cannot be used to prevent further sale of that copy, although rental and lending of computer program or sounding recording can still be controlled by the copyright owner

3. renting or lending copies of the work to the public, in case they are computer program or sound recordings

4. performing, showing or playing the work in public. Obvious examples are performing plays, playing sound recordings and showing films or videos in public. But this right also includes public delivery of lectures, speeches and the like, and letting a broadcast be seen or heard in public also involves performance of music and other copyright material contained in the broadcast

5. broadcasting the work or including it in a cable programme service i.e. cable television programmes

6. making an adaptation of the work, such as by translating a literary or dramatic work, transcribing a musical work and

7. converting a computer program into a different computer language or code

Copyright is infringed when any of the above acts are done without authorisation, whether directly or indirectly and whether the whole or a substantial part of a work, unless what is done falls within the scope of exceptions to copyright permitting certain minor uses of material.


Owner of Copyright

In the case of a literary, dramatic, musical or artistic work, the general rule is that the author, i.e. the person who created the work, is the first owner of the economic rights under copyright. However, where such a work is made in the course of employment, the employer is the first owner of these rights, unless an agreement to the contrary has been made with the author.

In the case of a film, the principal director and the film producer are joint authors and first owners of the economic rights, and similar provisions as referred to above apply where the director is employed.

In the case of a sound recording the author and first owner of copyright is the record producer; in the case of a broadcast, the broadcaster; and in the case of a published edition, the publisher.

Copyright is, however, a form of property which, like physical property, can be bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the economic rights may subsequently belong to someone other than the first owner. In contrast, the moral rights accorded to authors of literary, dramatic, musical and artistic works and film directors remain with the author or director or pass to his or her heirs on death.

Copyright in material produced by a Government department belongs to the Hong Kong Government. The Legislative Council also owns the works produced by it.


Benefits of copyright to its owner

Copyright is a property right. That is expressly provided in the Copyright Ordinance.

It is just like any other real property or chattels that one may own. A copyright owner must decide how to exploit his copyright work and how to enforce his copyright. He can decide whether or not there will be any use of the copyright work falling within the scope of the economic rights and, if so, whether he or she will use the copyright work and/or license one or more other people to use the work.

A copyright owner can also benefit from copyright by selling or agreeing a transfer of copyright to someone else. This is called assignment.

Many of the options available to a copyright owner will involve contractual agreements which may be just as important as the rights provided by copyright law. The right contractual agreement can minimise the chances of a dispute over use of the copyright work. This is called licence. Licence is limited in scope (e.g. book version), duration (e.g. 3 years) and territory (e.g. Asia). A licence can be exclusive or non-exclusive although in most cases, it is exclusive within a limited scope.

A copyright owner may have his copyright assigned to another person or corporation in return for a price and royalties.


Copyright is automatic, registration not required

Copyright protection is automatic as soon as there is a record in any form of what has been created (there is no official registration). Such is called the requirement of 'fixation'. The usual media of fixation are paper, tape, video tape, electronic or digital recording devices such as computer hard disk, optial disk, CD and floppy disk.

When copyright material is published many would mark the work with the international copyright symbol c followed by the name of the copyright owner and year of publication. This is not essential in Hong Kong, but may assist the copyright owner in infringement proceedings, and will be needed in certain foreign countries.


How long does copyright protection last?

The term of protection or duration of copyright varies depending on the type of copyright work.

Generally speaking, the terms of protection in Hong Kong are as follows:
· Copyright in a literary, dramatic, musical or artistic work lasts for the life of the author and 50 years from the end of the year in which he/she died.
· Copyright in a film expires 50 years after the end of the year in which the death occurs of the last to survive of the principal director, the authors of the screenplay and dialogue, and the composer of any music specially created for the film.
· Copyright in a sound recording expires 50 years from the end of the year in which it was made or, if released in this time, 50 years from the end of the year of release.
· Copyright in a broadcast or cable programme expires 50 years from the end of the year of making of the broadcast or inclusion of the cable programme in a cable programme service.
Copyright in a published edition expires 25 years from the end of the year in which the edition was first published.


What is Copyright?

Copyright gives the authors of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts.

The economic rights give the authors to control or use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line. These rights are exclusive. Copyright work is usually the result of creative skill and/or significant labour and/or investment. If there is no protection, it would often be very easy for others to exploit work without paying the creator.

It also gives moral rights to be identified as the author of certain kinds of material, and to object to distortion or mutilation of it. Moral rights are some times called non-economic rights.


Basic Framework on Copyright

Internet allows fast and easy access to numerous online resources. Those resources are very often free to browse and print (but seldom for copying for sale). But it must be aware that despite its openness and ease of use, content posted on the Internet are protected by copyrights, subject to the satisfaction of certain requisite elements such as originality, being a copyright work under the relevant legislation (Copyright Ordinance 版權條例), being an expression (not an idea).

There are debates surrounding the use of the Internet as a place for upload and download of digitized pictures, musical works and game programs. The MP3.COM, Napster and Gnuttella are great examples on this area of debate.

Another interesting area is the use of linking on web-pages. There are several distinctive forms of linking: hyperlinking, deep-linking and framing. Hyperlinking is a form causing the least controversy. Deep-linking and framing can often lead to litigations.

Other aspects of laws are very information in view of the rising importance and value of intellectual capital. That includes confidential information, trade secrets, copyrights etc which all can find protection under the laws.