FAQ > Copyright > Copyright in General

Copyright in General

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.

What is copyright?

Why is copyright protection important?

What is Copyright Law?

Who is the owner?

How are works protected?

How long does copyright last for?

Are there any copyright exceptions?

Contents

What is copyright?

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 topographical 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 law.

Why is copyright protection important?

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, China 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, China is also an international trading centre. We need to provide the necessary intellectual property rights protection, including copyright, to our investors to assure them of a free and fair environment in which to do business.

What is Copyright Law?

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 Hong Kong SAR's new Copyright Ordinance came into effect on 27 June 1997. It 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. In relation to performances, persons who have 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, China. 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, China.

Through the application of many international copyright conventions in Hong Kong, China, i.e. the Berne Convention, Universal Copyright Convention, the Phonograms Convention and the World Trade Organisation - Agreement on Trade Related Aspects of Intellectual Property Rights, your work is also protected in most countries and territories in the world.

Who is the owner?

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.

How are works protected?

Civil Remedies

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 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 an injunction to prevent further infringement and may be able to claim damages from the infringer.

Parallel importation of articles that contain copyright works is not permitted. After the coming into effect of the Copyright (Amendment) Ordinance 2003, restriction on parallel importation no longer applies to articles which contain 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. The amendment Ordinance comes into effect from 28 November 2003.

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.

Criminal Sanctions

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 maximum fine of HK$50,000 per infringing article and a term of imprisonment of up to four years.

Importing or exporting pirated articles is a criminal offence. It is also an offence to be involved in copyright piracy outside Hong Kong, China for the purpose of importation into Hong Kong. Those who manufacture equipment for copyright piracy may also be liable to a fine of HK$500,000 and a term of imprisonment of up to eight years.

Parallel-importing an article incorporating a copyright work (except for those computer software products mentioned above) is a criminal offence during the 18 months starting from the work's first publication anywhere in the world.

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.

How long does copyright last for?

The general rule is that copyright lasts until 50 years after the creator of the work dies. However, there are minor variations to this depending on the type of work.

Are there any copyright exceptions?

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 as well as 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.