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Publications
and Press Releases > Copyright in Hong Kong
Copyright in Hong Kong
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?
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 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 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 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.
Hong Kong'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. 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 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 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 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, the 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 took
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
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 commencing 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 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.
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