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Section 119B(1) of the Copyright Ordinance would not apply. Th is section related creative industries. Th e reasonably balanced proposal helps ensure
was added to the Copyright Ordinance in June 2007, but has yet to come that business operations would not be unduly aff ected.”
into operation. It introduced a criminal off ence against any person who
makes for distribution or distributes an infringing copy of a copyrighted
Th ese proposals are reasonable and practical, and are easily comprehensible
work in printed form (contained in a book, a magazine, a periodical or a
to the public and copyright owners. For instance, the prescribed formula for
newspaper) resulting in fi nancial loss to the copyright owner.
calculating the total number of infringing pages and the relevant situations
are explained in Part 3 of Schedule 1AA in great detail.
As a brief summary, the Copyright (Amendment) Ordinance 2009 seeks
to exempt criminal liability under Section 119B(1) in the following
Concurrently, the government has been reviewing the existing framework
circumstances:
for copyright protection in the digital environment since 2006, with public
consultation on the preliminary proposals ending in August 2008. Th is
• Where making for distribution or distribution of magazines, periodicals
reform is particularly important since technology advances very quickly.
(other than specifi c journals) and newspapers involves no more than 500
Th ere are fi ve main proposals:
A4-size pages of infringing copies of copyrighted works within any 14-day
period. A prescribed formula for page number calculation is available.
• Introducing a criminal sanction against copyright infringers when the
• Where making for distribution or distribution of books and specifi c
unauthorised communication of copyrighted works to the public is
journals if the qualifying copies (a defi nition is available in Section 1(1),
initiated for profi t or damages the rights holders. Particular attention is
Part 1 of Schedule 1AA) of copyrighted works involves no more than
given to ‘streaming’ technology, which is a technology for transferring
a retail value of HK$6,000 within any 180-day period. Provisions for
data in a continuous stream. Th e technology usually enables users
calculating the value of qualifying copies are available.
to view or listen to a work online, though (unlike downloading) users
will generally not be able to retain a complete copy of the work aft er
• Where distribution of an infringing copy is made through a wire or
streaming. According to the Hong Kong government, such technology
wireless network to which access is restricted by authentication or
has increasingly undermined the economics of the music, fi lm and TV
identifi cation procedures (e.g. the Intranet).
industries, which are the three main creative industries in Hong Kong
According to the Legislative Council Brief, the implications of the proposals
• Introducing a statutory limitation of liability for online service providers
are threefold:
(OSPs) in dealing with online piracy. Th e proposal is for a Code of Practice
• “Economic implications: copyright protection is a cornerstone to
setting out the conduct expected of OSPs when notifi ed of infringing
maintaining Hong Kong’s long term competitiveness. Th e reasonably
activities on their service platforms. OSPs that observe the code would be
balanced proposal should be able to facilitate the normal operation of the
deemed to have complied with the conditions
business end-users, while preserving the integrity of our copyright regime • Introducing a copyright exception for the temporary reproduction of
and safeguarding the fi nancial returns of the concerned copyright owners copyrighted works by OSPs. While most OSPs and users supported this
without hampering the ease of doing business in general. exception for facilitating digital transmission on the Internet, some copyright
• Financial and civil service implications: the proposal paves the way for the
owners were concerned that the exception was too wide and may be abused.
commencement of the already enacted copying and distribution off ence
Despite the debate, the government intends to proceed with this proposal
under the Copyright Ordinance (Cap. 528). While this legislative exercise
but will continue to work with stakeholders in fi ne-tuning its scope
for the prescription of the numeric limits under the Ordinance will not • Prescribing additional factors for considering the award of damages.
have additional fi nancial and civil service implications, enforcement
No additional factors have been proposed as yet and the government
of the off ence will increase the workload of the Customs and Excise
will further discuss with stakeholders the specifi c factors that should
Department. Th e department will undertake the additional work with its
be considered. Th e principle is to prescribe additional factors that will
existing resources.
assist the court in awarding additional damages, particularly in online
• Sustainability implications: the commencement of the business end-user infringement cases. However, by doing so, the government has to
copying and distribution off ence will contribute to the vibrancy of Hong overcome the diffi culties in specifying a range of statutory damages that
Kong’s economy by facilitating the development of the publishing and could do justice over a wide spectrum of infringements
www.worldipreview.com World Intellectual Property Review Digest 2009 83
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