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Copyright Law

1. The Hong Kong copyright regime is governed by the Copyright Ordinance and case law of the courts.

Protectable Copyright Works

2. The following works are protected:-

Dramatic work

Includes a work of dance or mime

Literary work

Means any work, other than a dramatic or musical work, which is written, spoken or sung, and accordingly includes- (a) a compilation of data or other material, in any form, which by reason of the selection or arrangement of its contents constitutes an intellectual creation, including but not limiting to a table; (b) a computer program; and (c) preparatory design material for a computer program.

Musical work

Means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.

Artistic work

Means (a) a graphic work, photograph, sculpture or collage, irrespective of artistic quality; (b) a work of architecture being a building or a model for a building; or (c) a work of artistic craftsmanship;

Sound recording

Means (a) a recording of sounds, from which the sounds may be reproduced; or (b) a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced, regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.

Film

Means a recording on any medium from which a moving image may by any means be produced. The sound-track accompanying a film is to be treated as part of the film 

Broadcast

Means a transmission by wireless telegraphy of sounds or of visual images and sounds or of representations thereof which (a) is capable of being lawfully received by members of the public in Hong Kong or elsewhere; or (b) is transmitted for presentation to members of the public in Hong Kong or elsewhere, otherwise than through a service for making available to the public of copies of works or fixations of performances.

Published edition  

Means a published edition of the whole or any part of one or more literary, dramatic or musical works.

Cable programme

Means any item included in a cable programme service. "Cable programme service" means a service which consists wholly or mainly in the lawful sending by any person, by means of a telecommunications system (whether run by himself or by any other person), of sounds, visual images, other information or any combination of them either (a) for lawful reception, otherwise than by wireless telegraphy, at 2 or more places in Hong Kong or elsewhere, whether they are so sent for simultaneous reception or at different times in response to requests made by different users of the service; or (b) for lawful reception, by whatever means, at a place in Hong Kong or elsewhere for the purposes of their being presented there either to members of the public or to any group of persons, and includes such a service that has as a component a multipoint microwave distribution system

Author and Ownership

3. "Author" (作者), in relation to a work, means the person who creates it. That person is taken to be- (a) in the case of a sound recording, the producer; (b) in the case of a film, the producer and the principal director; (c) in the case of a broadcast, the person making the broadcast or, in the case of a broadcast which relays another broadcast by reception and immediate re-transmission, the person making that other broadcast; (d) in the case of a cable programme, the person providing the cable programme service in which the programme is included; (e) in the case of the typographical arrangement of a published edition, the publisher. In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author is taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.

4. The author of a work is the first owner of any copyright in it.

5. Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to any agreement to the contrary

6. Where a work is made on the commission of a person and there is an agreement between the author and the commissioner of the work which expressly provides for the entitlement to the copyright, copyright in the commissioned work belongs to the person who is entitled to the copyright under the agreement.

Duration of Copyright

7. The following provisions have effect with respect to the duration of copyright in a literary, dramatic, musical or artistic work.

8. Copyright expires at the end of the period of 50 years from the end of the calendar year in which the author dies, subject as follows.

9. If the work is of unknown authorship, copyright expires (a) at the end of the period of 50 years from the end of the calendar year in which the work was first made; or (b) if during that period the work is made available to the public, at the end of the period of 50 years from the end of the calendar year in which it is first so made available, subject as follows.

10. If the work is computer-generated the above provisions do not apply and copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made.

11. The following provisions have effect with respect to the duration of copyright in a sound recording. Copyright expires (a) at the end of the period of 50 years from the end of the calendar year in which it is made; or (b) if during that period it is released, 50 years from the end of the calendar year in which it is released, subject as follows. A sound recording is "released" when it is first published, played in public, broadcast or included in a cable programme service; but in determining whether a sound recording has been released no account is to be taken of any unauthorized act.

12. The following provisions have effect with respect to the duration of copyright in a film. Copyright expires at the end of the period of 50 years from the end of the calendar year in which the death occurs of the last to die of the following persons- (a) the principal director; (b) the author of the screenplay; (c) the author of the dialogue; or (d) the composer of music specially created for and used in the film, subject as follows.

13. The following provisions have effect with respect to the duration of copyright in a broadcast or cable programme. Copyright in a broadcast or cable programme expires at the end of the period of 50 years from the end of the calendar year in which the broadcast was made or the programme was included in a cable programme service, subject as follows. Copyright in a repeat broadcast or cable programme expires at the same time as the copyright in the original broadcast or cable programme; and accordingly no copyright arises in respect of a repeat broadcast or cable programme which is broadcast or included in a cable programme service after the expiry of the copyright in the original broadcast or cable programme. A repeat broadcast or cable programme means one which is a repeat either of a broadcast previously made or of a cable programme previously included in a cable programme service.

14. Copyright in the typographical arrangement of a published edition expires at the end of the period of 25 years from the end of the calendar year in which the edition was first published.

Rights enjoyed by Copyright Owner and Infringement of Such Rights

15. The owner of the copyright in a work has, in accordance with the following provisions of this Division, the exclusive right to do the following acts in Hong Kong: (a) to copy the work; (b) to issue copies of the work to the public; (c) to rent copies of the work to the public; (d) to make available copies of the work to the public; (e) to perform, show or play the work in public; (f) to broadcast the work or include it in a cable programme service; (g) to make an adaptation of the work or do any of the above in relation to an adaptation

16. Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorizes another to do, any of the acts restricted by the copyright.

17. The copyright in a work is infringed by a person who, without the licence of the copyright owner, imports into Hong Kong or exports from Hong Kong, otherwise than for his private and domestic use, a copy of the work which is, and which he knows or has reason to believe to be, an infringing copy of the work.

18. The copyright in a work is infringed by a person who, without the licence of the copyright owner- (a) possesses for the purpose of or in the course of any trade or business; (b) sells or lets for hire, or offers or exposes for sale or hire; (c) exhibits in public or distributes for the purpose of or in the course of any trade or business; or (d) distributes (otherwise than for the purpose of or in the course of any trade or business) to such an extent as to affect prejudicially the owner of the copyright, a copy of a work which is, and which he knows or has reason to believe to be, an infringing copy of the work.

Permitted Acts

19. Fair dealing with a work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement.

20. Fair dealing with a work for the purpose of criticism or review, of that or another work or of a performance of a work, if it is accompanied by a sufficient acknowledgement, does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement.

21. Fair dealing with a work for the purpose of reporting current events, if it is accompanied by a sufficient acknowledgement, does not infringe any copyright in the work. No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme.

22. Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.

23. Fair dealing with a work by or on behalf of a teacher or by a pupil for the purposes of giving or receiving instruction in a specified course of study provided by an educational establishment does not infringe the copyright in the work or, in the case of a published edition, in the typographical arrangement.

24. Copyright in a literary, dramatic, musical or artistic work is not infringed by its being copied, to a reasonable extent, in the course of instruction or of preparation for instruction, if the copying-(a) is done by a person giving or receiving instruction; and (b) is not by means of a reprographic process.

25. Copyright in a sound recording, film, broadcast or cable programme is not infringed by its being copied by making a film or film sound-track in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, if the copying is done by a person giving or receiving instruction.

26. Copyright is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating the questions to the candidates or answering the questions.

27. The performance of a literary, dramatic or musical work before an audience consisting wholly or mainly of teachers and pupils at an educational establishment, parents or guardians of pupils at the establishment, and other persons directly connected with the activities of the establishment-(a) by a teacher or pupil in the course of the activities of the establishment; or (b) at the establishment by any person for the purposes of instruction, is not a public performance for the purposes of infringement of copyright.

28. The playing or showing of a sound recording, film, broadcast or cable programme before such audience at an educational establishment for the purposes of giving or receiving instruction is not a playing or showing of the work in public for the purposes of infringement of copyright.

29. The reading or recitation in public by one person of a reasonable extract from a published literary or dramatic work does not infringe any copyright in the work if it is accompanied by a sufficient acknowledgement.

30. The copyright in buildings, sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public, is not infringed by- (a) making a graphic work representing it; (b) making a photograph or film of it; or (c) broadcasting or including in a cable programme service a visual image of it.

31. It is not an infringement of copyright in an artistic work to copy it, or to issue or make available copies to the public, for the purpose of advertising the sale of the work.

32. Anything done for the purposes of reconstructing a building does not infringe any copyright- (a) in the building; or (b) in any drawings or plans in accordance with which the building was constructed.

33. Copyright in a film is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when- (a) it is not possible by reasonable inquiry to ascertain the identity of any of the persons referred to in section 19(2)(a) to (d) (persons by reference to whose life the copyright period is ascertained); and (b) it is reasonable to assume- (i) that copyright has expired; or (ii) that the last to die of those persons died 50 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

34. It is not an infringement of the copyright in a work (other than a broadcast or a cable programme) to perform, show or play it as part of the activities of, or for the benefit of, a club, society or other organization if the following conditions are met. The conditions are- (a) that the club, society or organization is not established or conducted for profit and its main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare; and (b) that the proceeds of any charge for admission to the place where the work is to be performed, shown or played are applied solely for the purposes of the club, society or organization.

Action against Copyright Infringement

35. An infringement of copyright is actionable by the copyright owner.

36. In an action for infringement of copyright all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in respect of the infringement of any other property right.

37. Where in an action for infringement of copyright it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

38. The court may in an action for infringement of copyright having regard to all the circumstances, and in particular to- (a) the flagrancy of the infringement; (b) any benefit accruing to the defendant by reason of the infringement; and (c) the completeness, accuracy and reliability of the defendant's business accounts and records, award such additional damages as the justice of the case may require.

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