Sections 47 to 53 of the Copyright Ordinance (“CO”) provide for different permitted acts which the librarians, curators or archivists of specified libraries, museums and archives may do under certain specific circumstances and subject to compliance with the relevant prescribed conditions. In this connection, section 46(1) of the CO empowers the Secretary for Commerce and Economic Development (“SCED”) to:

1. by notice in the Gazette specify the libraries, museums or archives the librarians, curators or archivists of which may do the relevant permitted acts; and
2. by regulations prescribe the conditions for compliance for the purposes of the relevant permitted acts.

Pending the enactment of the above regulations, the Copyright (Libraries) Regulations (Cap. 528B) which are saved by the provisions of the current CO as transitional measures remain in force. However, the specification provisions and prescribed conditions in the Copyright (Libraries) Regulations cannot fully cover the permitted acts currently provided for under sections 47 to 53 of the CO, and the provisions in the Copyright (Libraries) Regulations are also outdated, creating inconvenience and uncertainty in actual application.

In addition, the Copyright (Amendment) Ordinance 2022 (effective in May 2023) has strengthened copyright protection in the digital environment. At the same time, it has also extended the statutory application of certain permitted acts for specified libraries and archives to specified museums, and introduced and expanded certain permitted acts for specified libraries, museums and/or archives, to facilitate their reasonable daily operations, thereby promoting research, private study as well as knowledge preservation and dissemination. In light of the above updated and new provisions for permitted acts, we need to formulate corresponding subsidiary legislation to ensure that the provisions can be effectively applied and implemented.

For the aforesaid reasons, SCED has exercised the power conferred on him under section 46(1) of the CO and made the new Notice and the new Regulation respectively for the purposes of the permitted acts under sections 47 to 53 of the CO. The new Notice and the new Regulation will come into effect on 1 January 2026 to replace the Copyright (Libraries) Regulations.

The new Notice sets out the specified libraries under sections 47, 48 and 50 of the CO, and the specified libraries, museums and archives under sections 51, 51A, 52, 52A and 53 of the CO. In general, save in certain special and exceptional circumstances, only libraries, museums and archives of the Government, the Legislative Council and the Judiciary, as well as libraries, museums and archives which are not established or conducted for profit and the collections of which include copyright works and are generally accessible to the public or a section of the public, would be eligible to do the relevant permitted acts*.

The new Regulation prescribes the conditions for compliance for the purposes of the relevant permitted acts. The prescribed conditions include conditions required by the CO to be prescribed in the new Regulation, as well as other additional conditions for further reducing the risk of abuse of the relevant permitted acts.

* To strike a proper balance between the legitimate interests of copyright owners and the public interest, the CO contains over 60 provisions providing that users of copyright works may, under certain specific circumstances and subject to compliance with the relevant prescribed conditions, reasonably use copyright works without the copyright owners’ licence and without infringing copyright. Such acts are collectively referred to as “permitted acts”.

In determining whether a library, museum or archive is established or conducted for profit, all circumstances of the case are to be taken into account, in particular the nature and operation of the library, museum or archive.

Moreover, a library, museum or archive will not be regarded as being established or conducted for profit solely because its owner carries on a business for profit.

In addition, a library, museum or archive will not be regarded as being established or conducted for profit solely because there is revenue in the form of rental income, admission fee, membership fee or other administrative fee or charge.

The policy intent of the permitted acts relating to libraries, museums and archives is to promote research, private study as well as knowledge preservation and dissemination, rather than allowing libraries, museums and archives to make profit from their collections or copies obtained, in order to ensure a proper balance between the legitimate interests of copyright owners and the public interest. Therefore, save in certain special and exceptional circumstances, only libraries, museums and archives which are “not established or conducted for profit” would be eligible to do the relevant permitted acts.

Our policy intent is to allow libraries, museums and archives which are not established or conducted for profit of the following bodies or organisations to do the relevant permitted acts, having regard to the fact that the collections of these libraries, museums and archives are generally accessible to the general public or certain sectors of the public for facilitating, amongst others, research or private study:

1. Statutory bodies;
2. Educational establishments specified in Schedule 1 to the CO; and
3. Professional or charitable bodies / organisations, etc.

Therefore, if a library, museum or archive mainly serves its stakeholders or a certain sector of the public, the collection of such library, museum or archive could generally be considered as “accessible to a section of the public”.

For example, the collection of a school library is generally accessible to the teachers, students and staff of the school to promote research or academic exchange and facilitate dissemination of knowledge. It is considered as “accessible to a section of the public”.

Section 48 of the CO conditionally permits the librarian of a specified library to make a copy of part of certain published copyright works for users for the purposes of research or private study, and such copy must be no more than a “reasonable proportion” of the work.

The new Regulation stipulates that in determining a “reasonable proportion” of a copyright work, all circumstances of the case are to be taken into account. In particular, non-exhaustive factors such as the type, nature and volume of the copyright work (such as the number of words or pages of the work (for work in written form) or the duration of the work (for work in audio or video form)) shall be considered.

The new Regulation also illustrates that if a copy consists of no more than 10% of the work (by reference to its duration or number of words, pages or bytes or otherwise), the copy is to be regarded as a “reasonable proportion” of the work. For example, a “reasonable proportion” of a literary work (e.g. a novel) may be calculated based on 10% of the total number of words or pages of the work, i.e. if 10 pages of a 100-page novel are copied, the copy is regarded as a “reasonable proportion”.

It should be noted that this illustration of 10% is a guideline rather than a rigid definition, providing greater flexibility to librarians of specified libraries in the application of the relevant permitted act and allowing them to, depending on the specific nature of the copyright work and the particular circumstances of the case, make a copy of more than 10% of the work but still meeting the requirement of a “reasonable proportion” of the work, provided that other prescribed conditions under section 48 of the CO are complied with. For example, if 11 pages of a 100-page novel are copied, such copy may still be considered as a “reasonable proportion” after taking into account all circumstances of the case (e.g. the 11th page is the ending of a paragraph or a chapter and the meaning of the paragraph or chapter would be incomplete without that page).

It should also be noted that a published work (such as a poem or an essay) in an anthology, compilation or collection is to be regarded as the whole work and not as a part of the volume in which it is published.

The permitted act under section 48 of the CO refers to the act of the librarian of a specified library copying copyright works and supplying the copies to library users, upon the request of the relevant users and subject to compliance with all prescribed conditions. Such permitted act does not cover the copying of copyright works by the library users themselves.

Section 51 of the CO stipulates that the items being copied and replaced must be in the “permanent collections” of the specified libraries, museums or archives.

The new Regulation provides that a “permanent collection” is:

1. a collection of cultural or historical significance or importance that is maintained by the specified libraries, museums or archives with a view to its being used by any person wholly or primarily for reference on the premises of the specified libraries, museums or archives; or
2. a collection of cultural or historical significance or importance of the specified libraries, museums or archives available on loan only to any other libraries, museums or archives.

The new Regulation also provides that as long as a collection kept by specified libraries, museums or archives on a permanent basis satisfies one of the two conditions stated above, even though an item in the collection may be returned to the owner of that item temporarily, such collection is still a “permanent collection”.

The librarian, curator or archivist of a specified library, museum or archive does not have the responsibility to actively verify the authenticity of the content of the declaration.

Section 46(3)(a)(i) of the CO provides that where a librarian, curator or archivist of a specified library, museum or archive is required to be satisfied as to any matter before making or supplying a copy of a work, he / she may rely on a signed declaration as to that matter by the person requesting the copy, unless he / she is aware that it is false in a material particular.

Pursuant to the requirement of section 46 of the CO, declarations must be made in the forms prescribed in the new Regulation. To avoid affecting the legal effect of the declarations, specified libraries, museums or archives should follow the forms of declaration prescribed in the new Regulation (see the Schedule to the new Regulation). Except for modifications required or allowed by the forms (e.g. deleting inapplicable items, filling in details of the work), no other modifications should be made to the forms.

The existing CO does not define “libraries”, “museums” or “archives”.

To meet the developments of society and cope with changes of the times, the functions and services of libraries, museums and archives may change over time. Therefore, not providing a statutory definition for “libraries”, “museums” and “archives” offers greater flexibility. These terms may be interpreted according to their own ordinary meanings (for example, quoting their definitions in dictionaries).

If the services provided by a resource centre are similar to those provided by a library, the resource centre may be regarded as a “library” and may do the relevant permitted acts relying on the provisions of the CO.

The policy intent of the permitted acts relating to libraries, museums and archives is to promote research, private study as well as knowledge preservation and dissemination. In determining whether a library, museum or archive is indeed conducted for facilitating or promoting the research or private study of any discipline, all circumstances of the case are to be taken into account, such as the objective and actual operation of the library, museum or archive.