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.
In general, 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 Hong Kong, China in order to get protection under the Hong Kong law. In fact, there is no official registry in Hong Kong for registration of copyright works.
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 copyright, to our investors to assure them of a free and fair environment in which to do business.
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 Hong Kong 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 copyright protection for a work in Hong Kong. Works of authors from any place in the world, or works first published anywhere in the world, also qualify for copyright protection in Hong Kong.
Through the application of many international copyright conventions in Hong Kong, 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.
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.
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.
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 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.
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.