Intellectual Property Department - What is Intellectual Property?

Presentation by Stephen SELBY
Director of Intellectual Property, Hong Kong SAR Government

Hong Kong journalist Tony Shum sits at his terminal logged on to the INTERNET reading a freelance article about child beauty pageants he got published six months ago. The only thing is, the article is on a web page he has never heard of, based in the U.S, under the by-line 'Moustaffa Farouzi.' He has never been paid a penny by 'Moustaffa Farouzi' or his web publication. And to his horror, the article is framed by sleazy advertising that suggests links to child porn.

What's happening here? Where has copyright protection gone? How is Tony going to stop these people ripping him off and wrecking his journalistic reputation?

It's a strange thing that the fundamentals of copyright law - first formulated over 200 years ago when webs were things spun by spiders - can protect the writing of journalists on the INTERNET today. The concept of copyright is very strong and flexible. It recognizes your writing as a 'literary work' (regardless of how good or bad anyone thinks it is) and it gives you the right to stop other people copying or publishing it without your agreement, whether in print or on the INTERNET.

In some respects, however, copyright might fall short of your expectations. If you have a good story, copyright can protect the way you write your story, but it doesn't stop other people from using your 'idea' or 'scoop'.

Actually, copyright law goes to the other extreme: it makes sure that the ideas underlying a story (say news about a share insider-dealing scandal) is free for everyone to use. Copyright law also favours journalists who are using works such as printed articles or photographs in a fair manner for reporting news or current affairs.

An original written article, a graphic or a photograph is protected by copyright, whether or not it is published on the INTERNET. You never have to register copyright - protection is automatic and lasts for fifty years after the death of the author, artist or photographer. Best of all, nearly all the developed and developing countries in the world protect the works of each-other's citizens, or works first published in the country, through a network of treaties.

The good news for our journalist friend, Tony, is that his articles had copyright protection. People can't publish his material without his permission, and they certainly can't take his article and pass it off under the name of another author, thus infringing his 'moral rights'.

That was the good news. The bad news is that he is in Hong Kong and the infringing copy of his article is in the USA. He can't afford US lawyers' fees, and he certainly hasn't the time or the money to go over and sort things out for himself.

All is not lost. The first thing he needs to do is to prepare himself to show that he was the original author. Tony looks through his files and finds some drafts; but they have no date on them. He rings his original, legitimate publisher. Have they kept a copy of the original dated letter he used to submit his article, and a dated copy of the first printed? They have, and they are happy to support Tony by letting him have copies back. (After all, the publisher loses out from having the article ripped off, too.) Tony gives a sigh of relief.

Next he emails the American Society of Journalists and Authors. Can they advise him what to do next?

The Society faxes him a guideline for operating the 'take-down' procedures under the American Digital Millennium Copyright Act: no need to engage a lawyer: just provide information in the way specified by the Act.

Tony goes back to the website with the offending copy of his article and takes down the details. What is the website URL? Using the resources the Digital Network Sulutions 'WHOIS' database (http://www.networksolutions.com/cgi-bin/whois/whois), he can find out the registered name of the Internet Service Provider (ISP), their address, and the email address of the person responsible for the website where his article was infringed.

Armed with all this information, he makes a complaint to the ISP of the web page. He has to provide the following information:

his physical or electronic signature;
identification of the copyright works claimed to be infringed (or a representative list of such works);
identification of the material claimed to be infringing (e.g. filenames on the server) together with sufficient information to allow the ISP to locate them;
sufficient information to allow the ISP to contact the complainant;
a statement that Tony believes in good faith that the identified material is not authorized by himself or his legal agent;
a statement that the information in the notification is accurate under penalty of perjury and that he is authorized to act on his own behalf as the infringed party.

Once the ISP in the US receives the notification, he is obliged to cut off access to the infringing article within a reasonable time; otherwise he risks being held liable for the copyright infringement. In most cases, that is the end of the story: the offending web-page content provider is unlikely to want to get involved in defending himself against a copyright suit.

So some of Tony's problems are solved. His article is no longer appearing on a US INTERNET site under someone else's by-line, and his material is not appearing next to advertisements suggesting child porn. Unfortunately, he is not going to get any compensation unless he takes legal action against 'Moustaffa Farouzi' (who probably wouldn't have any money to pay with, even if a court found him, liable.)

Hong Kong's copyright law does not contain specific procedures like the US law to demand websites to take down material which infringes copyright. However, our law makes it clear the ISPs can be held liable for copyright infringement on sites that they host if they do anything more than provide physical facilities for enabling the making available of copies of works to the public.

This means that an Hong Kong ISP would be well-advised to co-operate with a clear request to take down infringing material if it received notice in the clear form suggested by the American Digital Millennium Copyright Act. The Hong Kong equivalent to making a statement under penalty of perjury would be for Tony to swear the facts in a Statutory Declaration: something he can do easily and cheaply at his nearest District Office.

Legal action for copyright infringement overseas is still difficult. A journalist with a some valuable work would probably still be best advised to keep it off the INTERNET unless he is backed by an organization which can help him enforce his rights overseas.

But simple action by requesting ISPs to remove infringing material is still a good option in Hong Kong, Europe, the USA, Canada and Australia. At least, it cures the symptoms of blatant copyright infringement, even if it doesn't help you get your money back.