- Powered by Yip Tse & Tang, Solicitors & Notaries 葉謝鄧律師行

Rights Management Information
Business Software Alliance (BSA)

Control of Anti-circumvention Device

It attracts civil liability to a person who deals with anti-circumvention devices or publishes information enabling such circumvention. The electronic circumvention mechanism includes encryption or digital watermark as happens in DVD and musical recordings of Secure Digital Music Initiative (SDMI). In Hong Kong, we have the example of Cable TV decoder. Such Cable TV decorder can be bought in China at just around $300. No authorisation is given by Cable Television Limited, the sole broadcaster of Cable TV in Hong Kong, to connect the decorder to the programme cable. The connection violates the right of 'making available the works to the public'. 'Making available' includes making available through wire or wireless means. Cable TV is transmitted through wire means. The installation of the decorder and the receiving of the programme for watching is an infringement of Cable TV's rights.

Section 273 provides that the person issuing or making available the copies or the unfixed performance to the public has the same rights and remedies (as a copyright owner has in respect of an infringement of copyright) against a person who, knowing or having reason to believe that it will be used to make infringing copies or infringing fixations:

(a) makes, imports, exports, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire, or possesses for the purpose of, in the course of, or in connection with, any trade or business, any device or means specifically designed or adapted to circumvent the form of copy-protection employed; or
(b) publishes information intended to enable or assist persons to circumvent that form of copy-protection.

Based on the above provisions, cable programme service providers like Cable TV is entitled to take action against the home users of the unauthorised decorders as well as against the supplier of the decorder, which is known to be an anti-circumvention device. To enforce the rights, the cable programme service provider will encounter great difficulties as the infringement takes place inside private residence. It is not easy to detect and have evidence gathered. Therefore, Cable TV has recently announced to have the decorder replaced. The replacement cost amounts to billions of dollars.