Copyright Protection in the Hong Kong SAR

Copyright is found commonly in articles in our daily lives. It is important to be informed of the key elements involved and help in the protection of this right.

The law of copyright is complex and detailed. This publication can only give a brief introduction to the key issues. It does not seek to be exhaustive and is not meant to give legal advice. If you need legal advice, you should consult a solicitor.

What is copyright/ Hong Kong copyright?

In general, copyright/Hong Kong copyright is the right given to the owner of an original work. This right can subsist in literary works such as books and computer software, musical works such as musical compositions, dramatic works such as plays, artistic works such as drawings, paintings and sculptures, sound recordings, films, broadcasts, cable programmes and the typographical arrangement of published editions of literary, dramatic, or musical works, as well as performers’ performances. Copyright works made available on the Internet environment are also protected.

In fact, the subsistence of copyright does not require the work to have an aesthetic value nor to be clever nor very creative. It exists even in an item as simple as a photograph taken by an ordinary person in daily life.

Copyright is an automatic right. It arises when a work is created. Unlike other intellectual property rights such as patents, trademarks, and industrial designs, it is not necessary to register a copyright in the Hong Kong SAR, in order to get protection under the law of the Hong Kong SAR. In fact, there is no official registry in the Hong Kong SAR for registration of copyright works.

 

Why is Hong Kong copyright protection important?

Hong Kong copyright protects creativity. The efforts of writers, artists, designers, software programmers and other talents need to and should be protected so as to create an environment where creativity can flourish and hard work can be rewarded. In return, the public benefits from the creations.

Hong Kong is a creative place. Our film production, television production, sound recording production, publications, fashion, jewellery, and graphical design are known world-wide and enjoy a ready market overseas. Hong Kong is also an international trading centre. We need to provide the necessary protection of intellectual property rights, including Hong Kong copyright, to our investors to assure them of a free and fair environment in which to do business.

 

What is Hong Kong Copyright Law?

Hong Kong Copyright law tries to maintain a balance between the rights of copyright owners for adequate payment for the use of their works, and the rights of society as a whole to have access to ideas and information. It is often said that copyright does not protect ideas, but only the expression or product of ideas. For example, you will probably infringe the copyright in a recipe book if you photocopy it without authorisation. But if you use the recipe to make a meal, copyright in the book is not infringed.

The Copyright Ordinance currently in force in the Hong Kong SAR has come into effect since 27 June 1997. The Ordinance as reviewed and revised from time to time provides comprehensive protection for recognised categories of literary, dramatic, musical, and artistic works, as well as for films, television broadcasts and cable diffusion, and works made available to the public on the Internet. Furthermore, performers of live performances and persons having exclusive recording contracts with performers are also entitled to protection.

There are no formalities required to obtain Hong Kong copyright protection for a work in the Hong Kong SAR. Works of authors from any place in the world, or works first published anywhere in the world, also qualify for Hong Kong copyright protection in the Hong Kong SAR.

Through the application of many international copyright conventions in the Hong Kong SAR, i.e. the Berne Convention, Universal Copyright Convention, the Phonograms Convention, the World Trade Organisation – Agreement on Trade Related Aspects of Intellectual Property Rights, the World Intellectual Property Organization (“WIPO”) Copyright Treaty and the WIPO Performances and Phonograms Treaty, your work is also protected in most countries and territories in the world.

 

Who is the owner?

The author of a work is the first owner of any copyright in it. Thus, the writer of a book is the first right owner. For employee works, the employer is the first copyright owner unless alternative agreement has been made. In other words, the employer has the right to all works produced by his or her employees.

For commissioned works, the ownership of copyright depends on the agreement between the parties.

 How are works protected?

 Civil Remedies

A copyright owner can take civil legal action against any person who infringes the copyright in the work. The activities that the owner can prevent vary according to the various types of works; but essentially the owner has the exclusive right to copy the work and to distribute it to the public. The owner may seek all necessary relief against the infringer, such as an injunction to prevent further infringement, an order for delivery up of the infringing items, disclosure of information about the supply and/or dealings of the infringing items and an award for damages as well as costs.

The laws governing parallel importation of copies of copyright works have been liberalized after enactment of the relevant provisions of the Copyright (Amendment) Ordinance 2003 and the Copyright (Amendment) Ordinance 2007. Since 28 November 2003, the restriction on parallel importation has ceased to apply to articles containing a computer program (commonly known as computer software products). However, if the principal attraction of a computer software product is musical sound or visual recordings, movies, television dramas, e-books, or a combination of them, the restriction continues to apply. Starting from 6 July 2007, there is no longer any civil and criminal sanction for end users to import or possess parallel imported copies of copyright works for use in business. However, parallel importation of copies of copyright works for any of the following purpose is still subject to civil or even criminal sanctions (see below):

dealing in (i.e. selling, hiring or distributing for profit) such copies except computer software products; or

(where such copies are movies, television dramas, musical sound recordings or musical visual recordings) playing or showing any such copyright work in public except by educational establishments or their libraries for educational purposes or library use .Anyone who manufactures or sells products for defeating technological copyright protection systems is also civilly liable. Border enforcement assistance to copyright owners by the Customs and Excise Department is also available.

 

Criminal Sanctions

The Customs and Excise Department is responsible for enforcing criminal aspects of copyright infringement. It has extensive powers of search and seizure in the investigation of alleged infringements and has the power to confiscate suspected infringing copies whether or not a charge has been laid.

There are wide-ranging provisions in the law for criminal enforcement of Hong Kong copyright. Those who commit copyright piracy, such as making of or possession of infringing articles for trade or business, may be subject to a term of imprisonment of up to four years and a maximum fine of HK$50,000 per infringing article.

Importing or exporting pirated articles is a criminal offence. It is also an offence to be involved in copyright piracy outside Hong Kong for the purpose of importation into Hong Kong. Those who manufacture equipment for copyright piracy may also be liable to a term of imprisonment of up to eight years and a maximum fine of HK$500,000.

Dealing in parallel-imported copies of any copyright work (except computer software products), importing them for dealing, importing, or possessing parallel-imported copies of movies, television dramas, musical sound recordings or musical visual recordings for playing or showing in public is a criminal offence during the 15 months commencing from the work’s first publication anywhere in the world.

Making, importing, exporting or dealing in products for defeating technological copyright protection systems, or providing commercial services for enabling customers to defeat the same systems is a criminal offence. Any offender, upon conviction, is liable to a term of imprisonment of up to four years and a maximum fine of HK$500,000.

 

How long does copyright last for?

The general rule is that copyright lasts until 50 years after the creator of the work dies. However, there are minor variations to this depending on the type of work.

 

Are there any copyright exceptions?

To balance the rights of the owners and society as a whole, there are exceptions in the law. A work will only be infringed if a substantial part is taken. This is a matter of quality rather than quantity. If a musician copies a very catchy musical phrase from another musician’s song, there is likely to be infringement even if that phrase is very short.

Subject to conditions, fair dealing for research and private study; criticism, review and news reporting, for use of works in library and school are permitted. Yet users should still be cautious about possible infringement. Photocopying an unreasonable amount of a book might constitute an infringement, for example.

This material is taken from IPD Homepage: www.ipd.gov.hk and is used with the permission of the Government of the Hong Kong Special Administrative Region.

 

© The Government of the Hong Kong Special Administrative Region. All Rights Reserved.

 

Regardless of the artistic value, creativity and sophistication of the work, copyright is found commonly in articles in our daily lives, as simple as an ordinary children’s painting drawn with lines can also be copyrighted. to be informed of the key elements involved and help in the protection of Hong Kong copyright to ensure that creators everywhere could do business in a free and fair environment in Hong Kong.

The law of Hong Kong copyright is complex and detailed. This publication can only give a brief introduction to the key issues. It does not seek to be exhaustive and is not meant to give legal advice. If you need legal advice, you should consult a solicitor.

 The protection of Hong Kong copyrights is particularly important for the creative industries. Hong Kong copyrights are the fuel to promote creativity and innovation. We are able to create an ideal environment only if we respect Hong Kong copyrights and the works of various creators. Thus, creators can make their works involving creativity freely and enjoy the rewards of hard work.

Furthermore, the public can share the fruits of their creations. The protection of Hong Kong copyrights ensures the sustainable development of local cultural and creative industries, so that Hong Kong can become the creative capital of Asia.

 

What is the relationship between HKRRLS and the Intellectual Property Department?

The Hong Kong Reprographic Rights Licensing Society is the registered licensing body at the Copyright Licensing Bodies Registry.

Since 2007, the Intellectual Property Department has been supporting the respect Hong Kong copyright activities organised by the The Hong Kong Reprographic Rights Licensing Society to nurture students to understand and respect the intellectual property rights from a young age. The “Respect Hong Kong Copyright” Education Competition engages students to be creative and raise their awareness on the importance of respecting Hong Kong copyright through creating their own design.

 

What are the jobs of HKRRLS on the protection of copyright?

HKRRLS has taken part in a range of education campaigns related to “respect copyright” among kindergarten, primary and secondary schools and higher education institutions and the Reward Scheme to Combat Illegal Photocopying of Books and Periodicals.

Copyright Education Campaign

Hong Kong Reprographic Rights Licensing Society has been organizing copyright education campaigns since 2007 to promote the respect copyright concept to students and the general public. The greatest significance of these campaigns is to inspire students’ creative thinking and put them in the creator’s role to bring up the awareness and the importance of respecting copyright.

Reward Scheme to Combat Illegal Photocopying of Books and Periodicals (Funded By HKRRLS)

The Reward Scheme is financed by the Hong Kong Reprographic Rights Licensing Society (HKRRLS) and fully administered by the Hong Kong Customs.

 

The aim of the reward scheme is to encourage members of the public to provide information to Customs to combat copying service businesses (such as copy shops) involving in activities of making infringing copies of copyright work in books, and organisations involving in activities of making infringing copies of copyright work in books or periodicals for distribution without authorisation of the copyright owner for the purpose of trade/business to an extent leading to a financial loss to the copyright owner.