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

Amendments to the Copyright Ordinance

In early 1999, the HKSAR Government consulted the public on additional legal tools to combat intellectual property rights infringements. One of the proposals that gained public support was to combat corporate copyright piracy activities by criminalizing the use of infringing products, for example, pirated computer software, in business. According to an unofficial estimate, about 50% of all computer software used in business is pirated. According to the Government, such an excessive degree of violation of intellectual property rights has significantly affected the legitimate interests of copyright owners, discouraged innovation and investments, and tarnished the international image of Hong Kong.

The Copyright Ordinance was amended to implement the proposal. The amendments took effect from 1 April 2001.

To address the public concern that the amendments had hampered the dissemination of information in enterprises as well as teaching activities in schools, the Legislative Council passed the Copyright (Suspension of Amendments) Ordinance 2001 in June 2001.

As a result, the criminal provisions in the recently amended Copyright Ordinance will continue to apply, with a slightly narrowed scope, to computer software, movies, television dramas and music recordings. For copyright works other than these four categories, the criminal provisions will revert to the position before the amendments took effect.

Licensing of Musical Works

The musical industry has developed types of licences in respect of music-related works:

Mechanical Licence

Mechanical license permits a licensee to record, reproduce and distribute musical works in recording media such as records, cassette tapes, CD's, etc.

Synchronization and Videogram Licence

Synchronization license permits a licensee to bundle music together in timed relation with visual images or motion pictures to create a work combining the audio and the visual content. Programmes on TV or films may have part of their scenes supported with music as the background.

Public Performance Licence

Public performance licences permits the licensee to publicly perform the musical composition.

As the music-related works are frequently used in public performance by different people or organisations, this right is very often managed through collective agent. In Hong Kong, such collective agent is CASH. A licensee desiring to publicly perform a song would have to enter into a licence agreement with CASH. Such licensing would require payment of royalty.

New Media Licence

This is a developing area of licensing. The Copyright Ordinance has been built based upon conventional technology. The Internet has offered a new mode of distribution for multimedia productions and has posed as a challenge. Certain leading copyright agent such as America's RIAA has created the webcast licensing framework for 'broadcast' of music over the Internet.

Audio-visual Work

The Copyright Ordinance does not provide a specie of audio-visual work as a type of copyright work. Rather, audio-visual work is classified as 'film'. Film means 'a recording on any medium from which a moving image may by any means be produced'. By the definition, a video clip, no matter how primitive or home-made it is, belongs to a film and is protected by copyright.

The sound-track accompanying a film is to be treated as part of the film for the purposes of the definition of film. The director of the film is the author and hence the first copyright owner of a film.

The licensing of a film is much simpler if the composition does not include other copyright works such as musical recordings. Caution must be taken in respect of a film which may orginate from the adaptation of a literary work such as a novel. Copyright clearance requires the authorisation of the copyright owner of the novel for the production of the fillm.

Musical Work and Sound recordings

The Copyright Ordinance considers the following music-related productions as being copyright works:

· musical works
· sound recordings

The Copyright Ordinance has not given a meaning to musical work. By ordinary construction, it means the music in its written form. It is therefore separate from work having other protections namely recording of the singing performance by the pop-singer which should be classified as sound recording. In typical situation, the author of a song would retain copyright of the work as musical work. Alternatively, he would have his rights transferred to the record company in return of royalty obtained by the licensing agent. On the other hand, record producers and record companies would own the rights to sound recordings. That is achieved by the agreement with the pop-singer.

Rights Management Information

It is very common to find that copyright works bear copyright information such as author, and use terms and conditions. These are rights management information.

Accoridng to s.274 of the Copyright Ordinance, 'rights management information' means-

(a) information which identifies the work, the author of the work, the owner of any right in the work, the performer, or the performance of the performer;

(b) information about the terms and conditions of use of the work, the person having fixation rights in relation to the performance, or the performance; or

(c) any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or a fixed performance or appears in connection with the making available of a work or a fixed performance to the public.

The law gives the provider of the rights management information legal remedies against persons who remove or alters such information without authority. Under the same section, he is entitled to the following rights and remedies as a copyright owner has in copyright infringement, namely, against the person who:

(a) removes or alters any electronic rights management information provided by him without his authority; or
(b) issues or makes available to the public, sells or lets for hire, imports into or exports from Hong Kong, broadcasts or includes in a cable programme service, without his authority, works or copies of works, performances, fixations of performances to which the electronic rights management information is attached knowing that the electronic rights management information has been removed or altered without his authority.

Works Having No Copyright

Copyright works are well-defined in the Copyright Ordinance, works do not fall into the definition are not qualified for protection. In some cases, a title is registrable as a trade mark thereby giving protection under the Trade Mark Ordinance. The following are not protected by copyright:

1. Unfixed works e.g. speeches. But it should be noted that live performance enjoys protection under the head of Performer's Rights although these are not copyrights in nature.

2. Titles (e.g. news headlines), names (Alan Tam), short phrases and slogans (Life is Full of Surprises)

3. familiar designs or symbols e.g. figure point symbol, cross-bone

4. Ideas (e.g. fruits are good for health), methods, systems, processes, concepts, principles, discoveries or devices.

Copyright and works on the Internet, uploading and downloading

Copyright material sent over the Internet or stored on web servers will generally be protected in the same way as material in other media. Such protected act is referred as 'making available of copies of the work to the public' in the Ordinance. S.26 provides that this is 'to make available of copies of the work, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the work from a place and at a time individually chosen by them (such as the INTERNET).

Copyright works commonly found on the Internet are sound recordings like music (MP3 format), films (Real Player or Media Player formats), literary works (texts and passages on world wide web pages and computer programs), artistic works (photos, graphics). Uploading songs without copyright authorisation for distribution by downloading for profits or commercial gains is an criminal offence and can lead to arrest and prosecution.

Anyone wishing to put copyright material on the Internet, or distribute or download material that others have placed on the Internet, should ensure that they have the permission of the owners of rights in the material.

The law may be different in other countries so copyright material may have been put on the Internet in other countries without infringing copyright there.

What are 'copyright works'?

Copyright gives rights to the authors of the following kinds of "works":

· literary works - for example, novels, newspaper articles, lyrics for songs, and instruction manuals. Computer programs are also a form of literary work protected by copyright, as are some types of databases

· dramatic works, including works of dance or mime

· musical works

· artistic works - for example, paintings, drawings, engravings, sculptures, photographs, diagrams, maps, works of architecture and works of artistic craftsmanship

· published editions of literary, dramatic or musical works. Protection in this case is of the typographical arrangement of the edition sound recordings, in any form (e.g. tape or compact disc) - they can be recordings of other copyright works, such as music or literature, or other sounds films, including videos and digital video discs (DVDs)

· broadcasts and cable programmes, including satellite and encrypted broadcasts

Material protected by copyright is called a "copyright work".

Copyright does not protect ideas, or such things as names or titles.

The purpose of copyright is to allow authors to gain economic rewards for their efforts. By providing the authors with the 'exclusivity', it encourages future creativity and the development of new material. Most uses of copyright material therefore require permission from the copyright owner. The exclusivity is enshrined in 'acts restricted by copyright' under s.22 Copyright Ordinance.

There are exceptions to copyright protections. Those exceptions permits uses without the need of obtaining the copyright owner's consent. These are referred as 'Acts permitted in relation to copyright works' under Division III of the Copyright Ordinance.

Copyright protection is automatic as soon as there is a record in any form of the material that has been created, and there is no official registration or form or fee. That is the requirement of the famous Berne Convention to which Hong Kong is a member.