Intellectual Property Department

1. Is it an offence for a copyshop to make a copy/copies of a copyright work without obtaining permission from the relevant copyright owner first?

Under the Copyright Ordinance, it is an offence for any person to make for sale or hire an infringing copy of a copyright work without the permission of the copyright owner. A work is only infringed if:

2. Are there some clear examples of illegal photocopying activities conducted by a copyshop?

It is an offence for a copyshop, without the licence of the copyright owner, to make a photocopy of an entire reference book or a textbook for a student.

3. How much of a book can be lawfully copied without infringing the copyright that subsists in the book?

There is no percentage set out on the extent of permissible copying under the Copyright Ordinance. A work is only infringed if a substantial part is taken. In determining whether a substantial part is taken, both the "quantity" and "quality" of the materials being copied have to be considered. There could be an infringement even if a relatively small proportion of the copyright work has been copied, if the proportion is the essence of the work.

4. If a student or teacher asks a copyshop to make some photocopies claiming that the copies are made for the purpose of research or private study, is it lawful for the copyshop to do the copying?

A teacher or student who, for the purpose of research or private study, makes a copy of a copyright work without authorization will not contravene the law provided that the copying is a fair dealing of the work. Whether the copying can constitute a fair dealing would depend on the purpose and nature of the copying, the nature of the work concerned, and the amount and substantiality of the portion copied as compared with the whole work. This is a permitted act under the Copyright Ordinance. A copyshop may do the copying for a teacher or student that is within the scope of such permitted act. However, it is generally not permissible to make more than one copy of the same work or to copy the entire work. Moreover, if a copyshop knows or has reason to believe that the copying would result in copies being provided to more than one person at more or less the same time and for more or less the same purpose, it should not make the copying. Acts which falls outside the scope of the permitted act on research and private study can attract civil or even criminal liabilities.

5. If a teacher asks a copyshop to make some photocopies of books for instruction purposes, claiming that this is covered by a licence agreement, is it lawful for the copyshop to do the copying?

Government schools and subsidized schools in Hong Kong have generally entered into licence agreements with licensing bodies such as the Hong Kong Reprographic Rights Licensing Society (HKRRLS) for making multiple copies of printed works for instruction purposes. However, those licence agreements usually only permit the photocopying to be carried out by the teachers or staff of the schools within the specified premises and with the specified machines. Copyshops should therefore check that the relevant licence agreement permits copying to be undertaken by them.

6. Is a copyshop allowed to make photocopies of printed works on behalf of an educational establishment for instruction purposes without the licence from the relevant copyright owners?

The Intellectual Property Department promulgated the "Guidelines for Photocopying of Printed Works by Not-for-Profit Educational Establishments" ("Guidelines") in September 2002. The Guidelines are designed to provide guidance to teachers in not-for-profit educational establishments in relation to photocopying of printed works for instruction purposes. The Guidelines are developed by consensus of interested parties and only bind those who have endorsed them. It is applicable only to not-for-profit educational establishments and not to for-profit educational establishments.

Under the Guidelines, multiple copying for instruction purposes may be made by or on behalf of a teacher giving a course in a not-for-profit educational establishment. However, it should be noted that in relation to textbooks, the copying must be made within the premises of a not-for-profit educational establishment.

7. Could a copyshop evade liability by asking a customer to sign a statement confirming that he/she has obtained a licence from the relevant copyright owner for the copying of the work?

Under the Copyright Ordinance, it is a defence for any person charged with an offence of making infringing copy for sale or hire to prove that he did not know and had no reason to believe that the copy in question was an infringing copy of the copyright work.

A statement confirming that the customer has obtained necessary licence from the copyright owner for the copying of the work may be a piece of evidence to show that the copyshop did not know and had no reason to believe that the copy being made is an infringing copy of the copyright work. However, this may be challenged or disproved by other evidence which shows that the copyshop did in fact know or have reason to believe that the copy being made is an infringing copy. The court will decide ultimately on the basis of all relevant facts and circumstances.

8. If the author of a copyright work has already died, can a copyshop make a copy/copies of his/her work without infringing the copyright in the work?

In general, copyright in literary, dramatic, musical or artistic work lasts up to 50 years from the end of the calendar year in which the author dies. Copying without the licence from the author's successor-in-title during this 50-year period will still infringe the copyright in the work.

For published editions, the copyright in the typographical arrangements lasts for 25 years from the end of the year in which the edition was first published.

Most printed works are protected by copyright and Hong Kong protects copyright works originated from anywhere in the world. If in doubt, one should make enquiries with the relevant publisher or the HKRRLS.

10. Can works published by the Hong Kong Examinations Authority (HKEA) be copied freely?

Publications of the HKEA are also protected by copyright and relevant licence should be obtained from them for photocopying.

11. Can works be copied freely if they do not bear any statement or logo showing that it is protected by copyright?

Copyright is an automatic right. It arises when a work is created. It is not necessary to register a copyright in Hong Kong, or to put any statement or logo on the work, in order to get protection under the law. The absence of any formality requirement for obtaining copyright protection is part of the international obligations Hong Kong, China has to meet under the international copyright conventions applicable to it.

12. What is the "copyshop offence" about?

The Copyright (Amendment) Ordinance 2004 introduces a new offence, which is known as the "copyshop offence", into the Copyright Ordinance. Under the copyshop offence, a person would be criminally liable if, for the purpose of or in the course of a copying service business, he possesses an infringing reprographic copy of a copyright work as published in a book, magazine or periodical. It is important to note that it has all along been an offence for any person (including a copyshop) to make for sale or hire an infringing copy of a copyright work without the permission of the copyright owner. Under this existing offence, the prosecution is required to prove the making of an infringing copy by a copyshop, which can be difficult to establish. The copyshop offence is introduced to facilitate enforcement and prosecution work against illicit reproduction of books, magazines or periodicals by copyshops for the purpose of or in the course of their business.

13. When does the "copyshop offence" take effect?

1 September 2004.

14. If an infringing copy was found in a copyshop, who would be charged under the copyshop offence, the owner of the shop or the employee(s)?

The copyshop offence is committed if a person, in the course of a copying service business, possesses an infringing reprographic copy of a copyright work as published in a book, magazine or periodical unless the person can invoke the statutory defence (see questions 17 to 20 below). The person who is in possession of the infringing copy would be charged. Whether a particular person has "possession" of an infringing copy depends very much on the facts of the case, and in particular, the degree of control or custody he/she is able to exercise over the copy and his/her intention at the material time with respect to that copy. As a result, both the owner of the shop and its employee(s) could possibly be charged under the copyshop offence.

15. If a stationery shop provides photocopying service to customers, but the photocopying service constitutes only a small part of its main business, would it be liable under the copyshop offence?

The copyshop offence targets at business that includes the offering of reprographic copying services. The copying service does not need to be the sole or core component of the business in question. Hence, the example of a stationery shop business which includes providing photocopying service to the public (albeit a small part of its business) could be caught by the copyshop offence.

16. If a non-profit-making organization provides copying service to the public and the service is provided at a fee in order to cover the operational costs of the organisation, would the organisation be liable under the copyshop offence?

The copyshop offence targets at copying service businesses. A "copying service business" is defined as a "business, conducted for profit, that includes the offering of reprographic copying services to the public". If the business of an organisation is non-profit-making and the copying service is regarded as part of the non-profit-making business of the organisation, the organisation would not be caught under the offence. However, if a non-profit-making organisation operates a separate "for profit" business having the profit-making copying service as its sole business or part of its "for profit" business, the organisation can be liable under the offence. In deciding whether a business is conducted for profit, an important consideration is the objective of the business. Whether the business has actually made profit is irrelevant.

17. If a customer claims that the copy which he/she brings to a copyshop for photocopying is not a copyright work as published in a book, magazine or periodical, but in fact it is, would the copyshop be held liable under the copyshop offence for possessing an infringing copy made from such copyright work?

It is a defence for a person charged under the copyshop offence to prove that he did not know and had no reason to believe that the copy of a copyright work in question was an infringing copy of the copyright work.

18. If a customer brings some infringing materials to a copyshop for binding service only, would the copyshop be liable under the copyshop offence?

It is a defence for a person charged under the copyshop offence to prove that the infringing copy of a copyright work in question was not made for the purpose of and was not made in the course of the copying service business. The copyshop can invoke this defence if the copyshop is merely providing the binding service for materials that are not made by the copyshop.

19. A copyshop has accepted a source copy from a customer for making further copies. Before the making of copies by the copyshop, the copyshop was raided by Customs and it was found that the source copy was an infringing copy. Would the shop be held liable under the copyshop offence?

It is a defence for a person charged under the copyshop offence to prove that the infringing copy of a copyright work in question was not made for the purpose of and was not made in the course of the copying service business. In other words, if the infringing copy was not made by the copyshop, the copyshop can invoke this defence.

20. If an employee of a copyshop makes and possesses an infringing copy of a book in the shop, intending to use the copy for his own use, would he/she be liable under the copyshop offence?

It is a defence for the person charged under the copyshop offence to prove that the infringing copy of a copyright work in question was not made for profit and was not made for reward. If the employee's intention is to use the infringing copy for his own use, the infringing copy was not made for profit or reward. In the circumstances, the employee can invoke this defence.

21. What are the penalties for the copyshop offence?

A person who is convicted of the copyshop offence may be subject to a maximum fine of HK$50,000 per infringing copy of a copyright work and a term of imprisonment of up to four years.

22. Before the commencement of the copyshop offence, would a copyshop making a copy of a copyright work without obtaining permission from the relevant copyright owner incur criminal liability?

Yes, please see question 1 above. Under the existing Copyright Ordinance, it is a criminal offence for any person (including a copyshop) to make an infringing copy of a copyright work for sale or hire. So far as copyshops are concerned, the copyshop offence will not change the scope of the existing offence; but it will facilitate enforcement and prosecution actions against the making of infringing copies by profit-making copying services and strengthen the protection of copyright in printed works.