WIPO Lex

PART I
PART II
PART III
PART IV

Legislative Texts

COPYRIGHT ORDINANCE

Chapter 528

Long title

An Ordinance to restate the law of copyright, with amendments; to make provision as to the rights of performers and others in performances; to make provision with respect to devices designed to circumvent copy-protection of works, with respect to rights management information and with respect to the fraudulent reception of transmissions; and for connected purposes.

[The Ordinance, other than the definitions of “register”,

“Registrar” and “registration” sections 142 to 149 and paragraph 5of Sections 142 to 144 (Originally 92 of 1997)	in	section 141(4), Schedule 4		27 June 1997 92 of 1997 25 July 1997 L.N. 406 of 1997]
		PART I

PRELIMINARY

Section 1 Short title, commencement and interpretation

(1) This Ordinance may be cited as the Copyright Ordinance.

(3): The tables showing the provisions defining expressions used in Part II and Part III are set out in sections 199 and 239 respectively.

PART II COPYRIGHT

Section 2 Copyright and copyright works

DIVISION I SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT

Introductory

(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—

Legislative Texts

(a) �: original literary, dramatic, musical or artistic works;
(b) �: sound recordings, films, broadcasts or cable programmes; and
(c) �: the typographical arrangement of published editions.

(2): In this Part “copyright work” means a work of any of those descriptions in which copyright subsists.
(3): Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 177 and the provisions referred to there).

[cf. 1988 c. 48 s. 1 U.K.]

Section 3 Rights subsisting in copyright works

(1): The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Division II as the acts restricted by the copyright in a work of that description.
(2): In relation to certain descriptions of copyright work the following rights conferred by Division IV (moral rights) subsist in favour of the author or director of the work, whether or not he is the owner of the copyright—

(a)	section 89 (right to be identified as author or director); and
(b)	section 92 (right to object to derogatory treatment of work).
		[cf. 1988 c. 48 s. 2 U.K.]

Section 4 Literary, dramatic and musical works

Descriptions of work and related provisions

(1) In this Part—
�“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.

(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.

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(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.

[cf. 1988 c. 48 s. 3 U.K.]

Section 5
�Artistic works
�

In this Part—
�“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;
�“building” includes any fixed structure, and a part of a building or fixed structure;
�“graphic work” includes—
�
(a) �: any painting, drawing, diagram, map, chart or plan; and

(b) any engraving, etching, lithograph, woodcut or similar work; “photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;

“sculpture” includes a cast or model made for purposes of sculpture. [cf. 1988 c. 48 s. 4 U.K.]

Section 6
�Sound recordings
�

(1): In this Part “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.

(2) Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording.

[cf. 1988 c. 48 s. 5A U.K.]

Section 7
�Films
�

Legislative Texts

(1): In this Part “film” means a recording on any medium from which a moving image may by any means be produced.
(4): Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film.

[cf. 1988 c. 48 s. 5B U.K.]

Section 8
�Broadcasts
�

(2): An encrypted transmission is regarded as capable of being lawfully received by members of the public in Hong Kong or elsewhere only if decoding equipment has been made available to members of the public in Hong Kong or elsewhere by or with the authority of the person making the transmission or the person providing the contents of the transmission.

and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast.

(4): For the purposes of this Part the place from which a broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth).
(5): References in this Part to the reception of a broadcast include reception of a broadcast relayed by means of a telecommunication system.

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(6) Copyright does not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast or in a cable programme.

[cf. 1988 c. 48 s. 6 U.K.]

Section 9
�Cable programmes
�

Remarks:

Amendments retroactively made - see 22 of 1999 s. 3

(1) In this Part—

“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 telecommunication 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, but does not include the services excepted under subsection (2) ;

“interconnection” includes interconnection that involves a change of technical characteristics, format or parameters;

“sounds”, for the purposes of the exclusion in subsection (2)(a) , means speech or music or both except that they do not include, in relation to any telecommunication system, speech providing information for the purpose of facilitating the use of a telecommunication service provided by means of that system;

“visual images”, for the purposes of the exclusion in subsection (2)(a) , means visual images which are such that sequences of them may be seen as moving pictures.

(2): The following are excepted from the definition of “cable programme service“—
(a) �: a service (such as the services commonly known as video conferencing and video telephony) which consists wholly or mainly in the transmission of sounds or visual images or both by any person if it is an essential feature of the service that, while they are being transmitted, there will or may be transmitted from each place of reception, by means of the telecommunication system or (as the case may be) the part of it by means of which they are transmitted, sounds or visual images or both for reception by that person;
(b) �: a service for making available to the public of copies of works or fixations of performances, but excluding a service in which the transmission of moving visual representational images is an essential feature (such as the service commonly known as video-on-demand);

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(d) �: the running of a telecommunication system in the case of which the only agency involved in the transmission of things thereby transmitted is light and the things thereby transmitted are so transmitted as to be capable of being received or perceived by the eye and without more;

and references in paragraph (e) and this paragraph to another telecommunication system do not include references to such a system as is mentioned in paragraph (c) (whether run by a broadcaster or by any other person); or

(g) �in the case of a business carried on by a person, the running, for the purposes of the business, of a telecommunication system which is not connected to another telecommunication system and with respect to which the following conditions are satisfied—

(i) �: that no person except the person carrying on the business is concerned in the control of the apparatus comprised in the system;
(ii) �: that nothing that is speech, music and other sounds, visual images, signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images, or signals serving for the actuation or control of machinery or apparatus is transmitted by the system by way of rendering a service to another;

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(iii) �that, in so far as sounds or visual images are transmitted by the system, they are not transmitted for the purpose of their being heard or seen by persons other than the person carrying on the business or any employees of his engaged in the conduct thereof;

(iv) �: that, in so far as signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images are transmitted by the system, they are not transmitted for the purpose of imparting matter otherwise than to the person carrying on the business, any employees of his engaged in the conduct thereof or things used in the course of the business and controlled by him; and
(v) �: that, in so far as signals of speech, music and other sounds are transmitted by the system, they are not transmitted for the purpose of actuating or controlling machinery or apparatus used otherwise than in the course of the business.

(3): The Chief Executive in Council may by order amend subsection (2) so as to remove exceptions, subject to such transitional provision as appears to him to be appropriate. (Amended 22 of 1999 s. 3)

[cf. 1988 c. 48 s. 7 U.K. & 1956 c. 74 s. 14A U.K.]

Section 10
�Published editions
�

(1): In this Part “published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.
(2): Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.

[cf. 1988 c. 48 s. 8 U.K.]

Section 11
�Authorship of work
�

Authorship and ownership of copyright

(1): In this Part “author”, in relation to a work, means the person who creates it.
(2): That person is taken to be—
(a) �: in the case of a sound recording, the producer;

Legislative Texts

(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 (see section 8(3) ) or, in the case of a broadcast which relays another broadcast by reception and immediate retransmission, 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.

(3): 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): For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.
(5): For the purposes of this Part the identity of an author is regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.

[cf. 1988 c. 48 s. 9 U.K.]

Section 12
�Works of joint authorship
�

(1): In this Part a “work of joint authorship” means a work made by the collaboration of 2 or more authors in which the contribution of each author is not distinct from that of the other author or authors.
(2): A film is treated as a work of joint authorship unless the producer and the principal director are the same person.
(3): A broadcast is treated as a work of joint authorship in a case where more than one person is to be taken as making the broadcast ( section 8(3) ).
(4): References in this Part to the author of a work are, except as otherwise provided, construed in relation to a work of joint authorship as references to all the authors of the work.

[cf. 1988 c. 48 s. 10 U.K.]

Section 13
�First ownership of copyright
�

The author of a work is the first owner of any copyright in it, subject to sections 14 , 15 and

16.

[cf. 1988 c. 48 s. 11(1) U.K.]

Section 14
�Employee works
�

Legislative Texts

(2): Subject to any agreement to the contrary, where such work is exploited by his employer or by someone else with the employer’s permission in a way that could not reasonably have been contemplated by the employer and the employee at the time of making the work, the employer shall pay an award to the employee in respect of such exploitation at such amount as agreed between the employer and the employee or failing an agreement, as determined by the Copyright Tribunal.

[cf. 1988 c. 48 s. 11(2) U.K.]

Section 15
�Commissioned works
�

(1): 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.

Section 16
�Government copyright, etc.
�

Sections 13 , 14 and 15 do not apply to Government copyright or Legislative Council copyright (see sections 182 and 184 ) or to copyright which subsists by virtue of section 188 (copyright of certain international organizations).

Section 17 Duration of copyright in literary, dramatic, musical or artistic works

Expanded Cross Reference:

Sections 182 , 183 , 184

Duration of copyright

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

Legislative Texts

(2) 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.

(3): 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.

(6): 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.
(8): This section does not apply to Government copyright or Legislative Council copyright (see sections 182 to 184 ) or to copyright which subsists by virtue of section 188 (copyright of certain international organizations). <* Note-Exp. X-Ref.: Sections 182 , 183 , 184 *>

[cf. 1988 c. 48 s. 12 U.K.]

Legislative Texts

Section 18
�Duration of copyright in sound recordings
�

(1) The following provisions have effect with respect to the duration of copyright in a sound recording.

(2): 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.

(3) For the purposes of subsection (2) 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.

[cf. 1988 c. 48 s. 13A U.K.]

Section 19
�Duration of copyright in films
�

(1) The following provisions have effect with respect to the duration of copyright in a film.

(d): the composer of music specially created for and used in the film, subject as follows.
(3): If the identity of one or more of the persons referred to in subsection (2)(a) to (d) is known and the identity of one or more others is not, the reference in that subsection to the death of the last of them to die is to be construed as a reference to the death of the last whose identity is known.

Legislative Texts

(b): making available of copies of a work to the public within the meaning of section 26 ; or
(c): being broadcast or included in a cable programme service,

but in determining generally for the purposes of that subsection whether a film has been made available to the public no account is to be taken of any unauthorized act.

(7): If in any case there is no person falling within subsection (2)(a) to (d) 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 film was made.
(8): For the purposes of this section the identity of any of the persons referred to in subsection (2)(a) to (d) is to be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if the identity of any such person is once known it shall not subsequently be regarded as unknown.

[cf. 1988 c. 48 s. 13B U.K.]

Section 20
�Duration of copyright in broadcasts and cable programmes
�

(1): The following provisions have effect with respect to the duration of copyright in a broadcast or cable programme.
(2): 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.
(3): 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.
(4): 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.

[cf. 1988 c. 48 s. 14 U.K.]

Section 21
�Duration of copyright in typographical arrangement of published editions
�

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.

[cf. 1988 c. 48 s. 15 U.K.]

Section 22
�The acts restricted by copyright in a work
�

DIVISION II RIGHTS OF COPYRIGHT OWNER

The acts restricted by copyright

Legislative Texts

(1) 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 (see section 23 );
(b) �: to issue copies of the work to the public (see section 24 );
(c) �: where the work is a computer program or sound recording, to rent copies of the work to the public (see section 25 );
(d) �: to make available copies of the work to the public (see section 26 );
(e) �: to perform, show or play the work in public (see section 27 );
(f) �: to broadcast the work or include it in a cable programme service (see section 28 );
(g) �: to make an adaptation of the work or do any of the above in relation to an adaptation (see section 29 ),

and those acts are referred to in this Part as the “acts restricted by the copyright”.

(2): 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.

Section 23
�Infringement of copyright by copying
�

(1): The copying of the work is an act restricted by the copyright in every description of copyright work; and references in this Part to copying and copies are construed as follows.
(2): Copying of a work means reproducing the work in any material form. This includes storing the work in any medium by electronic means.
(3): In relation to an artistic work copying includes the making of a copy in 3 dimensions of a 2-dimensional work and the making of a copy in 2 dimensions of a 3-dimensional work.
(4): Copying in relation to a film, television broadcast or cable programme includes making a photograph of the whole or any substantial part of any image forming part of the film, broadcast or cable programme.
(5): Copying in relation to the typographical arrangement of a published edition means making a facsimile copy of the arrangement.

Legislative Texts

(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.

[cf. 1988 c. 48 s. 17 U.K.]

Section 24
�Infringement by issue of copies to the public
�

(1): The issue of copies of the work to the public is an act restricted by the copyright in every description of copyright work.
(4): References in this Part to the issue of copies of a work include the issue of the original and the issues of copies in electronic form.

[cf. 1988 c. 48 s. 18 U.K.]

Section 25
�Infringement by rental of work to the public
�

(1): The rental of copies of the work to the public is an act restricted by the copyright in a computer program or a sound recording.

[cf. 1988 c. 48 s. 18A U.K.]

Section 26
�Infringement by making available of copies to the public
�

(1) The making available of copies of the work to the public is an act restricted by copyright in every description of copyright work.

Legislative Texts

(2): References in this Part to the making available of copies of a work to the public are to the making available of copies of the work, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the work from a place and at a time individually chosen by them (such as the making available of copies of works through the service commonly known as the INTERNET).
(3): References in this Part to the making available of copies of a work to the public include the making available of the original.
(4): The mere provision of physical facilities for enabling the making available of copies of works to the public does not of itself constitute an act of making available of copies of works to the public.

Section 27
�Infringement by performance, playing or showing of work in public
�

(3): The playing or showing of the work in public is an act restricted by the copyright in a sound recording, film, broadcast or cable programme.
(4): Where copyright in a work is infringed by its being performed, played or shown in public by means of apparatus for receiving visual images or sounds transmitted by electronic means, the person by whom the visual images or sounds are sent, and in the case of a performance the performers, shall not be regarded as responsible for the infringement.

[cf. 1988 c. 48 s. 19 U.K.]

Section 28
�Infringement by broadcasting or inclusion in a cable programme service
�

The broadcasting of the work or its inclusion in a cable programme service is an act restricted by the copyright in—

(a) �: a literary, dramatic, musical or artistic work;
(b) �: a sound recording or film; or
(c) �: a broadcast or cable programme.

[cf. 1988 c. 48 s. 20 U.K.]

Section 29
�Infringement by making adaptation or act done in relation to adaptation
�

Expanded Cross Reference:

Legislative Texts

Sections 23 , 24 , 25 , 26 , 27 , 28

(1): The making of an adaptation of the work is an act restricted by the copyright in a literary, dramatic or musical work. For this purpose an adaptation is made when it is recorded, in writing or otherwise.
(4): In relation to a computer program a “translation” includes a version of the program in which it is converted into or out of a computer language or code or into a different computer language or code.
(5): No inference is to be drawn from this section as to what does or does not amount to copying a work.

[cf. 1988 c. 48 s. 21 U.K.]

Section 30
�Secondary infringement: importing or exporting infringing copy
�

Secondary infringement of copyright

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.

[cf. 1988 c. 48 s. 22 U.K.]

Section 31
�Secondary infringement: possessing or dealing with infringing copy
�

Legislative Texts

The copyright in a work is infringed by a person who, without the licence of the copyright
�

owner—
(a)	possesses for the purpose of trade or business;
(b)	sells or lets for hire, or offers or exposes for sale or hire;
(c)	for the purpose of trade or business, exhibits in public or distributes; or
(d)	distributes otherwise than for the purpose of 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.

[cf. 1988 c. 48 s. 23 U.K.]

Section 32 Secondary infringement: providing means for making infringing copies

(1) Copyright in a work is infringed by a person who, without the licence of the copyright owner—

(a): makes;
(b): imports into Hong Kong or exports from Hong Kong;
(c): possesses for the purpose of trade or business; or
(d): sells or lets for hire, or offers or exposes for sale or hire,

an article specifically designed or adapted for making copies of that work, knowing or having reason to believe that it is to be used to make infringing copies.

(2) Copyright in a work is infringed by a person who, without the licence of the copyright owner, transmits the work by means of a telecommunications system (otherwise than by broadcasting or inclusion in a cable programme service), knowing or having reason to believe that infringing copies of the work will be made by means of the reception of the transmission in Hong Kong or elsewhere.

[cf. 1988 c. 48 s. 24 U.K.]

Section 33 Secondary infringement: permitting use of premises for infringing performance

(1): Where the copyright in a work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright.
(2): In this section “place of public entertainment” includes premises which are occupied mainly for other purposes but are from time to time made available for hire for the purposes of public entertainment.

[cf. 1988 c. 48 s. 25 U.K.]

Legislative Texts

Section 34
�

Secondary infringement: provision of apparatus for infringing performance, etc.

(1) Where copyright in a work is infringed by a public performance of the work, or by the playing or showing of the work in public, by means of apparatus for—

(a)	playing sound recordings;
(b)	showing films; or
(c)	receiving visual images or sounds transmitted by electronic means,

the persons specified in subsections (2) to (4) are also liable for the infringement.

(3): An occupier of premises who gave permission for the apparatus to be brought onto the premises is liable for the infringement if when he gave permission he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright.
(4): A person who supplied a copy of a sound recording or film used to infringe copyright is liable for the infringement if when he supplied it he knew or had reason to believe that what he supplied, or a copy made directly or indirectly from it, was likely to be so used as to infringe copyright.

[cf. 1988 c. 48 s. 26 U.K.]

Section 35 Meaning of “infringing copy”

Expanded Cross Reference:

Sections 118 , 119 , 120 , 121 , 122 , 123 , 124 , 125 , 126 , 127 , 128 , 129 , 130 , 131 , 132 , 133

Infringing copy

(1): In this Part “infringing copy”, in relation to a copyright work, is to be construed in accordance with this section.

Legislative Texts

(4) For the purposes of sections 118 to 133 (criminal provisions) “infringing copy” does not include a copy of a work-<* Note-Exp. X-Ref.: Sections 118, 119 , 120 , 121 , 122 , 123 , 124 , 125 , 126 , 127 , 128 , 129 , 130 , 131 , 132 , 133 *>

(a) �: that was lawfully made in the country, territory or area where it was made;
(b) �: that has been or is proposed to be imported into Hong Kong at any time after the expiration of 18 months beginning on the first day of publication of the work in Hong Kong or elsewhere; and
(c) �: its making in Hong Kong would have constituted an infringement of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work,

or a copy of an accessory work—

(i) �: that was lawfully made in the country, territory or area where it was made;
(ii) �: that has been or is proposed to be imported into Hong Kong; and

(iii) �its making in Hong Kong would have constituted an infringement of the copyright in the work in question, or a breach of an exclusive licence agreement relating to that work.

(5): For the purposes of Division VII (proceedings relating to importation of infringing articles), “infringing copy” does not include a copy of a work or a copy of an accessory work—

(6): Where in any proceedings the question arises whether a copy of a work is an infringing copy and it is shown—

it shall be presumed until the contrary is proved that the copy was made at a time when copyright subsisted in the work.

(7) In this Part “infringing copy” includes a copy which is to be treated as an infringing copy by virtue of any of the following provisions—

section 41(5) (copies made for purposes of instruction or examination);

section 44(3) (recordings made by educational establishments for educational purposes);

section 45(3) (reprographic copying by educational establishments for purposes of instruction);

section 46(4)(b) (copies made by librarian or archivist in reliance on false declaration);

section 64(2) (further copies, adaptations, etc. of work in electronic form retained on transfer of principal copy);

Legislative Texts

section 72(2) (copies made for purpose of advertising artistic work for sale); or

section 77(4) (copies made for purpose of broadcast or cable programme).

(8) For the purpose of subsections (3) , (4) and (5) , “accessory work” means a work incorporated in or consisting of—

(a) �: a label affixed to, or displayed on, an article;
(b) �: the packaging or container in which an article is packaged or contained;
(c) �: a label affixed to, or displayed on, the packaging or container in which an article is packaged or contained;
(d) �: a written instruction, warranty or other information incidental to an article and provided with the article on its sale; or
(e) �: an instructional sound recording or film incidental to an article and provided with the article on its sale,

and the economic value of the article (inclusive of the label, packaging, container, instruction, warranty, other information, sound recording or film, as the case may be) is not predominantly attributable to the economic value of the work.

(9) For the purpose of subsections (4) and (5) , “lawfully made” does not include the making of a copy of a work in a country, territory or area where there is no law protecting copyright in the work or where the copyright in the work has expired.

[cf. 1988 c. 48 s. 27 U.K.]

Section 36
�Defences for the purposes of sections 30 and 31
�

Defences

(1) For the purposes of sections 30a nd 31 and for the avoidance of doubt, it is declared that if in an action for infringement of copyright under section 30 or 31 in respect of a copy of a work which is an infringing copy by virtue only of section 35(3) , the defendant proves that—

(a) �: he had made reasonable enquiries sufficient to satisfy himself that the copy of the work imported or proposed to be imported into Hong Kong was not an infringing copy of the work;
(b) �: he had reasonable grounds to be satisfied in the circumstances of the case that the copy was not an infringing copy; and
(c) �: there were no other circumstances which would have led him reasonably to suspect that the copy was an infringing copy,

he has proved that he did not have reason to believe that the copy was an infringing copy.

(2) In determining whether a defendant has proved under subsection (1) that he did not have reason to believe that the copy was an infringing copy of the work, the court may have regard to, including but not limited to, the following—

(a) �whether he had made enquiries with a relevant trade body in respect of that category of work;

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(b) �: whether he had given any notice drawing attention of the copyright owner or exclusive licensee to his interest to import and to sell the copy of the work;
(c) �: whether he had complied with any code of practice that may exist in respect of the supply of that category of work;
(d) �: whether the response, if any, to those enquiries made by the defendant was reasonable and timely;
(e) �: whether he was provided with the name, address and contact details of the copyright owner or exclusive licensee (as the case may be);
(f) �: whether he was provided with the date of first day of publication of the work;
(g) �: whether he was provided with proof of any relevant exclusive licence.

(4): In determining whether the copyright owner or exclusive licensee had acted unconscionably, the court shall take into consideration the established practices of the particular trade for the orderly distribution of copies of that category of work and, in particular, whether the order, if fulfilled, would conflict with a normal exploitation of the work by the copyright owner or the exclusive licensee, or would unreasonably prejudice the legitimate interests of the copyright owner or exclusive licensee.
(5): In determining whether supply is withheld on “unreasonable grounds” or whether the agreement to supply is on “unreasonable terms” the court shall have regard to the reasonable requirements of the particular trade or particular public, including but not limited to price and delivery times, the practice of the trade with existing stocks in Hong Kong, the practice of the trade generally for the product in its particular medium, category or language, the size of the order, enquiries made and whether or not any person has previously had unfulfilled orders with the particular supplier.

Section 37
�Introductory provisions
�

DIVISION III ACTS PERMITTED IN RELATION TO COPYRIGHT WORKS

Introductory

(1) The provisions of this Division specify acts which may be done in relation to copyright works notwithstanding the subsistence of copyright; they relate only to the question of infringement of copyright and do not affect any other right or obligation restricting the doing of any of the specified acts.

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(2): Where it is provided by this Division that an act does not infringe copyright, or may be done without infringing copyright, and no particular description of copyright work is mentioned, the act in question does not infringe the copyright in a work of any description.
(3): In determining whether an act specified in this Division may be done in relation to a copyright work notwithstanding the subsistence of copyright, the primary consideration is that the act does not conflict with a normal exploitation of the work by the copyright owner and does not unreasonably prejudice the legitimate interests of the copyright owner.
(4): No inference is to be drawn from the description of any act which may by virtue of this Division be done without infringing copyright as to the scope of the acts restricted by the copyright in any description of work.
(5): The provisions of this Division are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision.

[cf. 1988 c. 48 s. 28 U.K.]

Section 38
�Research and private study
�

General

(1): Fair dealing with a work of any description 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.

(3): In determining whether any dealing with a work of any description is fair dealing, the factors to be considered include—

[cf. 1988 c. 48 s. 29 U.K.]

Section 39
�Criticism, review and news reporting
�

(1) 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.

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(2): Fair dealing with a work for the purpose of reporting current events, if (subject to subsection (3) ) it is accompanied by a sufficient acknowledgement, does not infringe any copyright in the work.
(3): No acknowledgement is required in connection with the reporting of current events by means of a sound recording, film, broadcast or cable programme.

[cf. 1988 c. 48 s. 30 U.K.]

Section 40
�Incidental inclusion of copyright material
�

(1): Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.
(2): The copyright is also not infringed by the issue or making available to the public of copies, or the playing, showing, broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of subsection (1) , not an infringement of the copyright.
(3): A musical work, words spoken or sung with music, or so much of a sound recording, broadcast or cable programme as includes a musical work or such words, is not regarded as incidentally included in another work if it is deliberately included.

[cf. 1988 c. 48 s. 31 U.K.]

Section 41
�Things done for purposes of instruction or examination
�

Education

(2): 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.
(3): 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.
(4): Subsection (3) does not extend to the making of a reprographic copy of a musical work for use by an examination candidate in performing the work.
(5): Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, the copy is treated as an infringing copy for the purpose of that dealing and if that dealing infringes copyright, for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire or offered or exposed for sale or hire.

[cf. 1988 c. 48 s. 32 U.K.]

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Section 42
�Anthologies for educational use
�

(1) The inclusion of a short passage from a published literary or dramatic work in a collection which—

(a) �: is intended for use in educational establishments and is so described in its title, and in any advertisements issued by or on behalf of the publisher; and
(b) �: consists mainly of material in which no copyright subsists,

does not infringe the copyright in the work if the work itself is not intended for use in such establishments and the inclusion is accompanied by a sufficient acknowledgement.

(2): Subsection (1) does not authorize the inclusion of more than 2 excerpts from copyright works by the same author in collections published by the same publisher over any period of 5 years.
(4): References in this section to the use of a work in an educational establishment are to any use for the educational purposes of such an establishment.

[cf. 1988 c. 48 s. 33 U.K.]

Section 43
�Performing, playing or showing work in course of activities of educational
�establishments
�

(1) The performance of a literary, dramatic or musical work before an audience consisting of teachers and pupils at an educational 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.

(2): The playing or showing of a sound recording, film, broadcast or cable programme before such audience at an educational establishment for the purposes of instruction is not a playing or showing of the work in public for the purposes of infringement of copyright.
(3): A person is for this purpose directly connected with the activities of an educational establishment if he is the parent or guardian of a pupil at the establishment.

[cf. 1988 c. 48 s. 34 U.K.]

Section 44 Recording by educational establishments of broadcasts and cable programmes

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(2): Recording or copying is not authorized by this section if, or to the extent that, licences under licensing schemes are available authorizing the recording or copying in question and the person making the recording or copies knew or ought to have been aware of that fact.
(3): Where a recording or copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, the copy is treated as an infringing copy for the purposes of that dealing and if that dealing infringes copyright, for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire or offered or exposed for sale or hire.

[cf. 1988 c. 48 s. 35 U.K.]

Section 45
�Reprographic copying made by educational establishments of passages from
�published works
�

(1): Reprographic copies of artistic works or of passages from published literary, dramatic or musical works may, to a reasonable extent, be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the work, or in the typographical arrangement.
(2): Copying is not authorized by this section if, or to the extent that, licences under licensing schemes are available authorizing the copying in question and the person making the copies knew or ought to have been aware of that fact.
(3): Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, it is treated as an infringing copy for the purposes of that dealing, and if that dealing infringes copyright, for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire or offered or exposed for sale or hire.

[cf. 1988 c. 48 s. 36 U.K.]

Section 46
�Libraries and archives: introductory
�

Expanded Cross Reference:

Sections 47 , 48 , 49 , 50 , 51 , 52 , 53

Libraries and archives

(1): The Secretary for Trade and Industry may—
(a) �: by regulations prescribe conditions; and

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(b) �by notice in the Gazette specify libraries or archives,

for the purposes of any provision in sections 47to 53 (copying by librarians and archivists). <* Note-Exp. X-Ref.: Sections 47 , 48 , 49 , 50 , 51 , 52 , 53 *>

(2): In sections 47 to 53 - <* Note-Exp. X-Ref.: Sections 47 , 48 , 49 , 50 , 51 , 52 , 53 *>
(a) �: references in any provision to the prescribed conditions are to the conditions prescribed for the purposes of that provision under subsection (1)(a) ; and
(b) �: references in any provision to a specified library or archive are to a library or archive of a description specified for the purposes of that provision under subsection (1)(b) .
(3): The regulations may—
(b) �: make different provisions for different descriptions of libraries or archives and for different purposes.

(5): References in this section, and in sections 47to 53 , to the librarian or archivist include a person acting on his behalf. <* Note-Exp. X-Ref.: Sections 47 , 48 , 49 , 50 , 51 , 52 , 53 *>

[cf. 1988 c. 48 s. 37 U.K.]

Section 47 Copying by librarians: articles in periodicals

(1) The librarian of a specified library may, if the prescribed conditions are complied with, make and supply a copy of an article in a periodical without infringing any copyright in the text, in any illustrations accompanying the text or in the typographical arrangement.

(2): The prescribed conditions must include the following—
(a) �: that copies are supplied only to persons satisfying the librarian that they require them for purposes of research or private study, and will not use them for any other purpose;
(b) �: that no person is furnished with more than one copy of the same article or with copies of more than one article contained in the same issue of a periodical; and
(c) �: that persons to whom copies are supplied are required to pay for them a sum not less

than the	cost	(including	a	contribution to	the general expenses	of the library)
attributable to t		heir production.
					[cf. 1988 c. 48 s. 38 U.K.]

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Section 48
�Copying by librarians: parts of published works
�

(1) The librarian of a specified library may, if the prescribed conditions are complied with, make and supply from a published edition a copy of part of a literary, dramatic or musical work (other than an article in a periodical) without infringing any copyright in the work, in any illustrations accompanying the work or in the typographical arrangement.

(2): The prescribed conditions must include the following—
(a) �: that copies are supplied only to persons satisfying the librarian that they require them for purposes of research or private study, and will not use them for any other purpose;
(b) �: that no person is furnished with more than one copy of the same material or with a copy of more than a reasonable proportion of any work; and
(c) �: that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library) attributable to their production.

[cf. 1988 c. 48 s. 39 U.K.]

Section 49
�Restriction on production of multiple copies of the same material
�

(1) Regulations for the purposes of sections 47 and 48 (copying by librarian of article or part of published work) must contain provision to the effect that a copy is supplied only to a person satisfying the librarian that his requirement is not related to any similar requirement of another person.

(2): The regulations may provide—
(a) �: that requirements are regarded as similar if the requirements are for copies of substantially the same material at substantially the same time and for substantially the same purpose; and
(b) �: that requirements of persons are regarded as related if those persons receive instruction to which the material is relevant at the same time and place.

[cf. 1988 c. 48 s. 40 U.K.]

Section 50
�Copying by librarians: supply of copies to other libraries
�

(1) The librarian of a specified library may, if the prescribed conditions are complied with, make and supply to another specified library a copy of—

(a) �: an article in a periodical;
(b) �: the whole or part of a published edition of a literary, dramatic or musical work; or
(c) �: a sound recording or film,

without infringing any copyright in the text of the article, in the work, in any illustration accompanying it, in the typographical arrangement, or in the sound recording or film, as the case may be.

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(2) Subsection (1)(b) and (c) does not apply if at the time the copy is made the librarian making it knows, or could by reasonable inquiry ascertain, the name and address of a person entitled to authorize the making of the copy.

[cf. 1988 c. 48 s. 41 U.K.]

Section 51 Copying by librarians or archivists: replacement copies of works

(1) The librarian or archivist of a specified library or archive may, if the prescribed conditions are complied with, make a copy from any item in the permanent collection of the library or

archive—
(a)	in order to preserve or replace that item by placing the copy in its permanent collection
	in addition to or in place of it; or
(b)	in order to replace in the permanent collection of another specified library or archive an
	item which has been lost, destroyed or damaged,

without infringing the copyright in any literary, dramatic or musical work, in any illustrations accompanying such a work or, in the case of a published edition, in the typographical arrangement or, in the case of a sound recording or a film, in the sound recording or film.

(2) The prescribed conditions must include provision for restricting the making of copies to cases where it is not reasonably practicable to purchase a copy of the item in question to fulfill that purpose.

[cf. 1988 c. 48 s. 42 U.K.]

Section 52 Copying by librarians or archivists: certain unpublished works

(1) The librarian or archivist of a specified library or archive may, if the prescribed conditions are complied with, make and supply a copy of the whole or part of—

(a) �: a literary, dramatic or musical work from a document (including a document in electronic form); or
(b) �: a sound recording or film,

in the library or archive without infringing any copyright in the work or any illustrations accompanying it or in the sound recording or film.

(2): This section does not apply if—
(a) �: the work had been published before it was deposited in the library or archive; or
(b) �: the copyright owner has prohibited copying of the work,

and at the time the copy is made the librarian or archivist making it is, or ought to be, aware of that fact.

(3) The prescribed conditions must include the following—

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(a) �: that copies are supplied only to persons satisfying the librarian or archivist that they require them for purposes of research or private study and will not use them for any other purpose;
(b) �: that no person is furnished with more than one copy of the same material; and
(c) �: that persons to whom copies are supplied are required to pay for them a sum not less than the cost (including a contribution to the general expenses of the library or archive) attributable to their production.

[cf. 1988 c. 48 s. 43 U.K.]

Section 53 Copying by librarians or archivists: articles of cultural or historical importance

The librarian or archivist of a specified library or archive may make a copy of an article of cultural or historical importance or interest and deposit the copy at the specified library or archive without infringing any copyright in respect of the article if the article is likely to be lost to Hong Kong through sale or export.

[cf. 1988 c. 48 s. 44 U.K.]

Section 54
�Legislative Council and judicial proceedings
�

Public administration

(1): Copyright is not infringed by anything done for the purposes of the proceedings of the Legislative Council or judicial proceedings.
(2): Copyright is not infringed by anything done for the purposes of reporting such proceedings; but this is not to be construed as authorizing the copying of a work which is itself a published report of the proceedings.

[cf. 1988 c. 48 s. 45 U.K.]

Section 55
�Statutory inquiries
�

(1): Copyright is not infringed by anything done for the purposes of the proceedings of a statutory inquiry.
(2): Copyright is not infringed by anything done for the purposes of reporting any such proceedings held in public; but this is not to be construed as authorizing the copying of a work which is itself a published report of the proceedings.
(3): Copyright in a work is not infringed by the issue or making available to the public of copies of the report of a statutory inquiry containing the work or material from it.

(4) In this section—

“statutory inquiry” means an inquiry held or investigation conducted in pursuance of—

(a) �the Commissions of Inquiry Ordinance (Cap 86); or

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(b) �a duty imposed or power conferred by or under an Ordinance.

[cf. 1988 c. 48 s. 46 U.K.]

Section 56
�Material open to public inspection or on official register
�

Remarks:

Amendments retroactively made - see 22 of 1999 s. 3

(1): Where material is open to public inspection pursuant to a statutory requirement, or is on a statutory register, copyright is not infringed by the copying of so much of the material as contains factual information of any description, by or with the authority of the appropriate person, for a purpose which does not involve the issuing or making available of copies to the public.
(2): Where material is open to public inspection pursuant to a statutory requirement, copyright is not infringed by the copying or issuing or making available to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of any right for the purpose of which the requirement is imposed.
(3): Where material which is open to public inspection pursuant to a statutory requirement, or which is on a statutory register, contains information about matters of general scientific, technical, commercial or economic interest, copyright is not infringed by the copying or issuing or making available to the public of copies of the material, by or with the authority of the appropriate person, for the purpose of disseminating that information.
(4): The Chief Executive may by regulation provide that subsection (1) , (2) or (3) applies, in such cases as may be specified in the regulation, only to copies marked in such manner as may be so specified. (Amended 22 of 1999 s. 3)

as they apply in relation to material open to public inspection pursuant to a statutory requirement or to a statutory register.

(6) In this section—

“appropriate person” means the person required to make the material open to public inspection or, as the case may be, the person maintaining the statutory register;

“statutory register” means a register maintained in pursuance of a requirement imposed by or under an Ordinance;

“statutory requirement” means a requirement imposed by or under an Ordinance.

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[cf. 1988 c. 48 s. 47 U.K.]

Section 57
�Material communicated to the Government in the course of public business
�

(1): This section applies where a work has in the course of public business been communicated to the Government for any purpose, by or with the licence of the copyright owner and a document or other material thing recording or embodying the work is owned by or in the custody or control of the Government.
(2): The Government may, for the purpose for which the work was communicated to it, or any related purpose which could reasonably have been anticipated by the copyright owner, copy the work, or issue or make available copies of the work to the public without infringing any copyright in the work.
(5): This section has effect subject to any agreement to the contrary between the Government and the copyright owner.

[cf. 1988 c. 48 s. 48 U.K.]

Section 58
�Public records
�

(1): Material which is comprised in public records which are open to public inspection may be copied, and a copy may be supplied to any person without infringement of copyright.
(2): In this section “public records” means the records of any nature or description which have been made, received or acquired in the course of proceedings of the Legislative Council, judicial proceedings or executive transaction, together with the exhibits and other material evidence which form part of or are annexed to or are otherwise related to any record, which are or are required to be in the custody of, or which may be transferred to or be acquired by, any department of the Government.

[cf. 1988 c. 48 s. 49 U.K.]

Section 59
�Acts done under statutory authority
�

(1): Where the doing of a particular act is specifically authorized by an Ordinance, whenever enacted, then, unless the Ordinance provides otherwise, the doing of that act does not infringe copyright.
(2): Nothing in this section is to be construed as excluding any defence of statutory authority otherwise available under or by virtue of any Ordinance.

[cf. 1988 c. 48 s. 50 U.K.]

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Section 60
�Lawful user may make back-up copy of computer program
�

Computer programs: Lawful users

(1): A lawful user of a copy of a computer program may make a back-up copy of the program without infringing the copyright in the program if it is necessary for him to have the back-up copy for the purposes of his lawful use.
(2): For the purposes of this section and section 61 a person is a lawful user of a computer program if he has a contractual right to use the program.

(3) This section has effect subject to any agreement to the contrary.

[cf. 1988 c. 48 s. 50A U.K.]

Section 61
�Lawful user may copy or adapt computer program
�

(1): A lawful user of a copy of a computer program may copy or adapt the program without infringing the copyright in the program if the copying or adapting is necessary for his lawful use.
(2): A lawful user of a copy of a computer program may, in particular, if it is necessary for the lawful use of the program, copy the program or adapt it for the purpose of correcting errors in it.

(3) This section does not apply to any copying or adapting permitted under section 60 .

[cf. 1988 c. 48 s. 50C U.K.]

Section 62
�Use of typeface in ordinary course of printing
�

Typefaces

(1) It is not an infringement of copyright in an artistic work consisting of the design of a typeface—

(a) �: to use the typeface in the ordinary course of typing, composing text, typesetting or printing;
(b) �: to possess an article for the purpose of such use; or
(c) �: to do anything in relation to material produced by such use,

and this is so notwithstanding that an article is used which is an infringing copy of the work.

(2) However, the following provisions of this Part apply in relation to persons making, importing, exporting or dealing with articles specifically designed or adapted for producing material in a particular typeface, or possessing such articles for the purpose of dealing with them, as if the production of material as mentioned in subsection (1) did infringe copyright in the artistic work consisting of the design of the typeface—

section 32 (secondary infringement: making, importing, exporting, possessing or dealing with article for making infringing copy);

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section 109 (order for delivery up); and

section 118(4) (offence of making or possessing such an article).

(3) The references in subsection (2) to “dealing with” an article are to selling, letting for hire, or offering or exposing for sale or hire, exhibiting in public, or distributing.

[cf. 1988 c. 48 s. 54 U.K.]

Section 63
�Articles for producing material in particular typeface
�

(1): This section applies to the copyright in an artistic work consisting of the design of a typeface where articles specifically designed or adapted for producing material in that typeface have been marketed by or with the licence of the copyright owner.
(2): After the period of 25 years from the end of the calendar year in which the first such articles are marketed, the work may be copied by making further such articles, or doing anything for the purpose of making such articles, and anything may be done in relation to articles so made, without infringing copyright in the work.
(3): In subsection (1) “marketed” means sold, let for hire or offered or exposed for sale or hire, in Hong Kong or elsewhere.

[cf. 1988 c. 48 s. 55 U.K.]

Section 64
�Transfers of copies of works in electronic form
�

Works in electronic form

(1) This section applies where a copy of a work in electronic form (other than such a copy which was made available to the public) has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to copy the work, or to adapt it or make copies of an adaptation, in connection with his use of it.

(2): If there are no express terms—
(a) �: prohibiting the transfer of the copy by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any licence or terminating any licence on a transfer; or
(b) �: providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done without infringement of copyright by a transferee; but any copy, adaptation or copy of an adaptation made by the purchaser which is not also transferred is to be treated as an infringing copy for all purposes after the transfer.

(3): Subsection (2) also applies where the original purchased copy is no longer usable and what is transferred is a further copy used in its place.
(4): The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.

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[cf. 1988 c. 48 s. 56 U.K.]

Section 65
�Certain acts permitted where works made available to the public
�

Notwithstanding section 23 , copyright in a work is not infringed by the making of a transient and incidental copy which is technically required for the viewing or listening of the work by a member of the public to whom a copy of the work is made available.

Section 66
�Anonymous or pseudonymous works: acts permitted on assumptions as to
�expiry of copyright or death of author
�

Miscellaneous: Literary, dramatic, musical and artistic works

(1) Copyright in a literary, dramatic, musical or artistic work 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 the author; and
(2): Subsection (1)(b)(ii) does not apply in relation to—
(a) �: a work in which Government copyright subsists; or
(b) �: a work in which copyright originally vested in an international organization by virtue of section 188 and in respect of which a regulation under that section specifies a copyright period longer than 50 years.
(3): In relation to a work of joint authorship—
(a) �: the reference in subsection (1) to its being not possible to ascertain the identity of the author is to be construed as a reference to its being not possible to ascertain the identity of all of the authors; and
(b) �: the reference in subsection (1)(b)(ii) to the author having died is to be construed as a reference to all the authors having died.

[cf. 1988 c. 48 s. 57 U.K.]

Section 67
�Use of notes or recordings of spoken words in certain cases
�

(1): Where a record of spoken words is made, in writing or otherwise, for the purpose of—
(a) �: reporting current events; or
(b) �: broadcasting or including in a cable programme service the whole or part of the work,

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it is not an infringement of any copyright in the words as a literary work to use the record or material taken from it (or to copy the record, or any such material, and use the copy) for that purpose, if the conditions in subsection (2) are met.

(2): The conditions are that—
(a) �: the record is a direct record of the spoken words and is not taken from a previous record or from a broadcast or cable programme;
(b) �: the making of the record was not prohibited by the speaker and, where copyright already subsisted in the work, did not infringe copyright;
(c) �: the use made of the record or material taken from it is not of a kind prohibited by or on behalf of the speaker or copyright owner before the record was made; and
(d) �: the use is by or with the authority of a person who is lawfully in possession of the record.

[cf. 1988 c. 48 s. 58 U.K.]

Section 68
�Public reading or recitation
�

(1): 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.
(2): Copyright in a work is not infringed by the making of a sound recording, or the broadcasting or inclusion in a cable programme service, of a reading or recitation which by virtue of subsection (1) does not infringe copyright in the work, if the recording, broadcast or cable programme consists mainly of material in relation to which it is not necessary to rely on that subsection.

[cf. 1988 c. 48 s. 59 U.K.]

Section 69
�Abstracts of scientific or technical articles
�

(1): Where an article on a scientific or technical subject is published in a periodical accompanied by an abstract indicating the contents of the article, it is not an infringement of copyright in the abstract, or in the article, to copy the abstract or issue or make available copies of it to the public. [cf. 1988 c. 48 s. 60(1) U.K.]
(2): This section does not apply if, or to the extent that, licences under licensing schemes are available authorizing the act in question and the person so acting knew or ought to have been aware of that fact.

Section 70
�Recordings of folksongs
�

(1) A sound recording of a performance of a song may be made for the purpose of including it in an archive maintained by a body designated under subsection (4)(b) without infringing any

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copyright in the words as a literary work or in the accompanying musical work, if the conditions in subsection (2) below are met.

(2): The conditions are that—
(a) �: the words are unpublished and of unknown authorship at the time the recording is made;
(b) �: the making of the recording does not infringe any other copyright; and
(c) �: its making is not prohibited by any performer.

(3) Copies of a sound recording made in reliance on subsection (1) and included in an archive maintained by a body designated under subsection (4)(b) may, if the conditions prescribed under subsection (4)(a) are met, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.

(4): The Secretary for Trade and Industry may for the purposes of this section by regulation—
(a) �: prescribe conditions; and
(b) �: designate bodies, and he shall not designate a body unless he is satisfied that the body is not established or conducted for profit.
(5): The conditions prescribed under subsection (4)(a) must include—
(a) �: that copies are only supplied to persons satisfying the archivist that they require them for the purposes of research or private study and will not use them for any other purpose; and
(b) �: that no person is furnished with more than one copy of the same recording.
(6): In this section, references to the archivist include a person acting on his behalf. [cf. 1988 c. 48 s. 61 U.K.]

Section 71
�Representation of certain artistic works on public display
�

(1): This section applies to—
(a) �: buildings; and
(b) �: sculptures, models for buildings and works of artistic craftsmanship, if permanently situated in a public place or in premises open to the public.
(2): The copyright in such a work 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.

(3) Nor is the copyright infringed by the issue or making available to the public of copies, or the broadcasting or inclusion in a cable programme service, of anything whose making was, by virtue of this section, not an infringement of the copyright.

[cf. 1988 c. 48 s. 62 U.K.]

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Section 72
�Advertisement of sale of artistic work
�

(1): 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.
(2): Where a copy which would otherwise be an infringing copy is made in accordance with this section but is subsequently dealt with, the copy is treated as an infringing copy for the purposes of that dealing if that dealing infringes copyright for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, offered or exposed for sale or hire, exhibited in public or distributed.

[cf. 1988 c. 48 s. 63 U.K.]

Section 73
�Making of subsequent works by same artist
�

Where the author of an artistic work is not the copyright owner, he does not infringe the copyright by copying the work in making another artistic work if he does not repeat or imitate the main design of the earlier work.

[cf. 1988 c. 48 s. 64 U.K.]

Section 74
�Reconstruction of buildings
�

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, by or with the licence of the copyright owner, constructed.

[cf. 1988 c. 48 s. 65 U.K.]

Section 75
�Films: acts permitted on assumptions as to expiry of copyright, etc.
�

Miscellaneous: Films and sound recordings

(1) 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

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(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.

(2): Subsection (1)(b)(ii) does not apply in relation to—
(a) �: a film in which Government copyright subsists; or
(b) �: a film in which copyright originally vested in an international organization by virtue of section 188 and in respect of which a regulation under that section specifies a copyright period longer than 50 years.

[cf. 1988 c. 48 s. 66A U.K.]

Section 76
�Performance, showing or playing of works for purposes of club, society, etc.
�

(1) 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.

(2): 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.

[cf. 1988 c. 48 s. 67 U.K.]

Section 77
�Incidental recording for purposes of broadcast or cable programme
�

Miscellaneous: Broadcasts and cable programmes

(1): This section applies where by virtue of a licence or assignment of copyright a person is authorized to broadcast or include in a cable programme service—

(2): He is by virtue of this section to be treated as licensed by the owner of the copyright in the work to do or authorize any of the following for the purposes of the broadcast or cable programme—

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(3): That licence is subject to the condition that the sound recording, film, photograph or copy in question—

(4): A sound recording, film, photograph or copy made in accordance with this section is treated as an infringing copy—

[cf. 1988 c. 48 s. 68 U.K.]

Section 78
�Recording for purposes of supervision and control of broadcasts and cable
�programmes
�

(1) Copyright is not infringed by the making or use by Radio Television Hong Kong, for the purposes of maintaining supervision and control over programmes broadcast by them, of recordings of those programmes.

(2): Copyright is not infringed by the making or use of recordings—
(a) �: by the Broadcasting Authority for the performance of its functions mentioned in section 9 of the Broadcasting Authority Ordinance (Cap 391); or
(b) �: pursuant to the instructions of the Broadcasting Authority in the performance of those functions.

[cf. 1988 c. 48 s. 69 U.K.]

Section 79
�Recording for purposes of time-shifting
�

The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or cable programme or in any work included in it.

[cf. 1988 c. 48 s. 70 U.K.]

Section 80
�Photographs of television broadcasts or cable programmes
�

The making for private and domestic use of a photograph of the whole or any part of an image forming part of a television broadcast or cable programme, or a copy of such a photograph, does not infringe any copyright in the broadcast or cable programme or in any film included in it.

[cf. 1988 c. 48 s. 71 U.K.]

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Section 81
�Free public showing or playing of broadcast or cable programme
�

(4): Where the making of the broadcast or inclusion of the programme in a cable programme service was an infringement of the copyright in a sound recording or film, the fact that it was heard or seen in public by the reception of the broadcast or programme is to be taken into account in assessing the damages for that infringement.

[cf. 1988 c. 48 s. 72 U.K.]

Section 82 Reception and re-transmission of broadcast in cable programme service

(1) The copyright in a television broadcast or a sound broadcast is not infringed by any person who, by the reception and immediate re-transmission of the broadcast without any alteration, includes a programme in a service provided—

(a) �: by a communal aerial broadcast distribution system within the scope of section 8(4)(e) of the Telecommunication Ordinance (Cap 106);
(b) �: by an interconnection between a communal aerial broadcast distribution system within the scope of section 8(4)(e) of the Telecommunication Ordinance (Cap 106) and a subscription television network licensed under the Television Ordinance (Cap 52), where the re-transmission is for the reception of the users of the communal aerial broadcast distribution system; or

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(c) �by a system licensed under a broadcast relay station licence issued under the Telecommunication Regulations (Cap 106 sub. leg.).

(2) The copyright in a television broadcast which is not encrypted or in a sound broadcast which is not encrypted is not infringed by any person who, by the reception and immediate retransmission of the broadcast without any alteration, includes a programme in a service provided—

(a) �: by a system licensed under a satellite master antenna television licence issued under the Telecommunication Regulations (Cap 106 sub. leg.); or
(b) �: by an interconnection between a system licensed under a satellite master antenna television licence issued under the Telecommunication Regulations (Cap 106 sub. leg.) and a subscription television network licensed under the Television Ordinance (Cap 52) and where the re-transmission is for the reception of the users of the satellite master antenna television system,

until the expiration of 6 months beginning on the day of publication of the notice in accordance with subsection (5) .

(3): Where a television broadcast or sound broadcast is made or uplinked from a place in Hong Kong or elsewhere, and the broadcast is a lawful broadcast, then any person who, by the reception and immediate re-transmission of the broadcast without any alteration, includes a programme in a service provided by a system or an interconnection specified in subsection (1) or (2) , being a programme comprising a literary, dramatic or musical work, or an adaptation of such a work, or an artistic work, or a sound recording or film, shall be in a like position, in any proceedings for infringement of the copyright (if any) in the work, recording or film, as if he had been the holder of a licence granted by the owner of that copyright to include the work, adaptation, recording or film in any programme so included in that service.
(4): Where a television broadcast or a sound broadcast is not encrypted, the person who, by the reception and immediate re-transmission of the broadcast without any alteration, includes a programme in a service provided by a system or interconnection specified in subsection (2) is deemed to have been granted an implied licence by the maker of the broadcast to receive and retransmit the broadcast using the system which is only revocable by notice given in accordance with subsection (5) .

[cf. 1988 c. 48 s. 73 U.K.]

Section 83
�Provision of sub-titled copies of broadcast or cable programme
�

(1) A body designated under subsection (3) may, for the purpose of providing people who are deaf or hard of hearing, or physically or mentally handicapped in other ways, with copies which are sub-titled or otherwise modified for their special needs, make copies of television broadcasts or cable programmes and issue and make available copies to the public, without infringing any copyright in the broadcasts or cable programmes or works included in them.

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(2): This section does not apply if, or to the extent that, licences under licensing schemes are available authorizing the act in question and the person so acting knew or ought to have been aware of that fact.
(3): The Secretary for Trade and Industry may, by notice in the Gazette, designate bodies for the purposes of this section, and the Secretary shall not designate a body unless he is satisfied that it is not established or conducted for profit.

[cf. 1988 c. 48 s. 74 U.K.]

Section 84
�Recording for archival purposes
�

(1): A recording of a broadcast or cable programme of a class designated under subsection (2) , or a copy of such a recording, may be made for the purpose of being placed in an archive maintained by a body designated under subsection (2) without thereby infringing any copyright in the broadcast or cable programme or in any work included in it.
(2): The Secretary for Trade and Industry may, by notice in the Gazette, designate any class of broadcast or of cable programme and any body for the purposes of this section, and the Secretary shall not designate a body unless he is satisfied that it is not established or conducted for profit.

[cf. 1988 c. 48 s. 75 U.K.]

Section 85
�Adaptations
�

Adaptations

An act which by virtue of this Division may be done without infringing copyright in a literary, dramatic or musical work does not, where that work is an adaptation, infringe any copyright in the work from which the adaptation was made.

[cf. 1988 c. 48 s. 76 U.K.]

Section 86
�Corresponding design
�

Designs

In sections 87 and 88 , a “corresponding design”, in relation to an artistic work, means a design within the meaning of the Registered Designs Ordinance (Cap 522) which if applied to an article would produce something which would be treated for the purposes of this Part as a copy of the artistic work.

[cf. 1988 c. 48 s. 53(2) U.K.]

Section 87
�Effect of exploitation of design derived from artistic work
�

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(2): After the end of the period of 25 years from the end of the calendar year in which such articles incorporating a registered corresponding design are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.
(3): After the end of the period of 15 years from the end of the calendar year in which such articles incorporating an unregistered corresponding design are first marketed, the work may be copied by making articles of any description, or doing anything for the purpose of making articles of any description, and anything may be done in relation to articles so made, without infringing copyright in the work.

[cf. 1988 c. 48 s. 52 U.K.]

Section 88
�Things done in reliance on registration of design
�

The copyright in an artistic work is not infringed by anything done—

(a) �: in pursuance of an assignment or licence made or granted by a person registered under the Registered Designs Ordinance (Cap. 522) as the registered owner of a corresponding design; and
(b) �: in good faith in reliance on the registration and without notice of any proceedings for the cancellation of the registration or for rectifying the relevant entry in the register of designs,

and this is so notwithstanding that the person registered as the registered owner was not the owner of the design for the purposes of that Ordinance.

[cf. 1988 c. 48 s. 53(1) U.K.]

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Section 89
�Right to be identified as author or director
�

DIVISION IV MORAL RIGHTS

Right to be identified as author or director

(1): The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work in the circumstances mentioned in this section; but the right is not infringed unless it has been asserted in accordance with section 90 .

and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(3) The author of a musical work, or a literary work consisting of words intended to be sung or spoken with music, has the right to be identified whenever—

(a) �: the work is published commercially, performed in public, broadcast or included in a cable programme service;
(b) �: copies of a sound recording of the work are issued or made available to the public; or
(c) �: a film of which the sound-track includes the work is shown in public or copies of such a film are issued or made available to the public,

and that right includes the right to be identified whenever any of those events occur in relation to an adaptation of the work as the author of the work from which the adaptation was made.

(4): The author of an artistic work has the right to be identified whenever—
(a) �: the work is published commercially or exhibited in public, or a visual image of it is broadcast or included in a cable programme service;
(b) �: a film including a visual image of the work is shown in public or copies of such a film are issued or made available to the public; or
(c) �: in the case of a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship, copies of a graphic work representing it, or of a photograph of it, are issued or made available to the public.

(5): The author of a work of architecture in the form of a building also has the right to be identified on the building as constructed or, where more than one building is constructed to the design, on the first to be constructed.
(6): The director of a film has the right to be identified whenever the film is shown in public, broadcast or included in a cable programme service or copies of the film are issued or made available to the public.

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(7): The right of the author or director under this section is—
(a) �: in the case of commercial publication or the issue or making available to the public of copies of a film or sound recording, to be identified in or on each copy or, if that is not appropriate, in some other manner likely to bring his identity to the notice of a person acquiring a copy;
(b) �: in the case of identification on a building, to be identified by appropriate means visible to persons entering or approaching the building; and
(c) �: in any other case, to be identified in a manner likely to bring his identity to the notice of a person seeing or hearing the performance, exhibition, showing, broadcast or cable programme in question,

and the identification must in each case be clear and reasonably prominent.

(8) If the author or director in asserting his right to be identified specifies a pseudonym, initials or some other particular form of identification, that form must be used; otherwise any reasonable form of identification may be used.

(9) This section has effect subject to section 91 .

[cf. 1988 c. 48 s. 77 U.K.]

Section 90
�Requirement that right be asserted
�

(1): A person does not infringe the right conferred by section 89 (right to be identified as author or director) by doing any of the acts mentioned in that section unless the right has been asserted in accordance with the following provisions so as to bind him in relation to that act.

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(b) �: in the case of an assertion under subsection (2)(b) , anyone to whose notice the assertion is brought;
(c) �: in the case of an assertion under subsection (3)(a) , anyone into whose hands that original or copy comes, whether or not the identification is still present or visible;
(d) �: in the case of an assertion under subsection (3)(b) , the licensee and anyone into whose hands a copy made in pursuance of the licence comes, whether or not he has notice of the assertion.

(5) In an action for infringement of the right the court shall, in considering remedies, take into account any delay in asserting the right.

[cf. 1988 c. 48 s. 78 U.K.]

Section 91
�Exceptions to right
�

(3): The right does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally vested in the author’s employer by virtue of section 14(1) (employee works).

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

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(7): The right does not apply in relation to—
(a) �: a work in which Government copyright or Legislative Council copyright subsists; or
(b) �: a work in which copyright originally vested in an international organization by virtue of section 188 ,

unless the author or director has previously been identified as such in or on published copies of the work.

[cf. 1988 c. 48 s. 79 U.K.]

Section 92
�Right to object to derogatory treatment of work
�

Right to object to derogatory treatment of work

(1) The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to derogatory treatment.

(2): For the purposes of this section—
(b) �: the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director,

and in the following provisions of this section references to a derogatory treatment of a work are construed accordingly.

(3): In the case of a literary, dramatic or musical work the right is infringed by a person who—
(a) �: publishes commercially, performs in public, broadcasts or includes in a cable programme service a derogatory treatment of the work; or
(b) �: issues or makes available to the public copies of a film or sound recording of, or including, a derogatory treatment of the work.
(4): In the case of an artistic work the right is infringed by a person who—
(a) �: publishes commercially or exhibits in public a derogatory treatment of the work, or broadcasts or includes in a cable programme service a visual image of a derogatory treatment of the work;
(b) �: shows in public a film including a visual image of a derogatory treatment of the work or issues or makes available to the public copies of such a film; or

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(iii) �a work of artistic craftsmanship,

issues or makes available to the public copies of a graphic work representing, or of a photograph of, a derogatory treatment of the work.

(7): The right conferred by this section extends to the treatment of parts of a work resulting from a previous treatment by a person other than the author or director, if those parts are attributed to, or are likely to be regarded as the work of, the author or director.
(8): This section has effect subject to sections 93 and 94 (exceptions to and qualifications of right).

[cf. 1988 c. 48 s. 80 U.K.]

Section 93
�Exceptions to right
�

(1): The right conferred by section 92 (right to object to derogatory treatment of work) is subject to the following exceptions.

(3): The right does not apply in relation to any work made for the purpose of reporting current events.

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.

Nor does the right apply in relation to any subsequent exploitation elsewhere of such a work without any modification of the published version.

(7): Where the author or director is identified at the time of the relevant act under subsection (6) or has previously been identified in or on published copies of the work, subsection (6) has effect only if there is a sufficient disclaimer.

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[cf. 1988 c. 48 s. 81 U.K.]

Section 94
�Qualification of right in certain cases
�

(1): This section applies to—
(a) �: works in which copyright originally vested in the author’s employer by virtue of section 14(1) (works produced in course of employment);
(b) �: works in which Government copyright or Legislative Council copyright subsists; and
(c) �: works in which copyright originally vested in an international organization by virtue of section 188 .

(2) The right conferred by section 92 (right to object to derogatory treatment of work) does not apply to anything done in relation to a work referred to in subsection (1) by or with the authority of the copyright owner unless the author or director—

(a) �: is identified at the time of the relevant act; or
(b) �: has previously been identified in or on published copies of the work, and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer.

[cf. 1988 c. 48 s. 82 U.K.]

Section 95
�Infringement of right by possessing or dealing with infringing article
�

(1) The right conferred by section 92 (right to object to derogatory treatment of work) is also infringed by a person who—

(a) �: possesses for the purpose of trade or business;
(b) �: sells or lets for hire, or offers or exposes for sale or hire;
(c) �: for the purpose of trade or business exhibits in public or distributes; or
(d) �: distributes otherwise than for the purpose of trade or business so as to affect prejudicially the honour or reputation of the author or director,

an article which is, and which he knows or has reason to believe is, an infringing article.

(2): An “infringing article” means a work or a copy of a work which—
(a) �: has been subjected to derogatory treatment within the meaning of section 92 ; and
(b) �: has been or is likely to be the subject of any of the acts mentioned in that section in circumstances infringing that right.

[cf. 1988 c. 48 s. 83 U.K.]

Section 96
�False attribution of work
�

False attribution of work

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(1): A person has the right in the circumstances mentioned in this section—
(a) �: not to have a literary, dramatic, musical or artistic work falsely attributed to him as author; and
(b) �: not to have a film falsely attributed to him as director,

and in this section an “attribution”, in relation to such a work, means a statement (express or implied) as to who is the author or director.

(2): The right is infringed by a person who—
(a) �: issues or makes available to the public copies of a work of any of those descriptions in or on which there is a false attribution; or
(b) �: exhibits in public an artistic work, or a copy of an artistic work, in or on which there is a false attribution.
(3): The right is also infringed by a person who—
(a) �: in the case of a literary, dramatic or musical work, performs the work in public, broadcasts it or includes it in a cable programme service as being the work of a person; or
(b) �: in the case of a film, shows it in public, broadcasts it or includes it in a cable programme service as being directed by a person,

knowing or having reason to believe that the attribution is false.

(4) The right is also infringed by a person who issues or makes available to the public or displays in public material containing a false attribution in connection with any of the acts mentioned in subsection (2) or (3) .

(5): The right is also infringed by a person who for the purpose of trade or business—
(a) �: possesses or deals with a copy of a work of any of the descriptions mentioned in subsection (1) in or on which there is a false attribution; or
(b) �: in the case of an artistic work, possesses or deals with the work itself when there is a false attribution in or on it,

knowing or having reason to believe that there is such an attribution and that it is false.

(6) In the case of an artistic work the right is also infringed by a person who for the purpose of trade or business—

(a) �: deals with a work which has been altered after the author parted with possession of it as being the unaltered work of the author; or
(b) �: deals with a copy of such an altered work as being a copy of the unaltered work of the author,

knowing or having reason to believe that that is not the case.

(7) References in this section to dealing are to selling or letting for hire, offering or exposing for sale or hire, exhibiting in public, or distributing.

(8) This section applies where, contrary to the fact—

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(a) �: a literary, dramatic or musical work is falsely represented as being an adaptation of the work of a person; or
(b) �: a copy of an artistic work is falsely represented as being a copy made by the author of the artistic work,

as it applies where the work is falsely attributed to a person as author.

[cf. 1988 c. 48 s. 84 U.K.]

Section 97
�Duration of rights
�

Supplementary

(1): The rights conferred by section 89 (right to be identified as author or director) and section 92 (right to object to derogatory treatment of work) continue to subsist so long as copyright subsists in the work.
(2): The right conferred by section 96 (false attribution) continues to subsist until 20 years after a person’s death.

[cf. 1988 c. 48 s. 86 U.K.]

Section 98
�Consent and waiver of rights
�

(1): It is not an infringement of any of the rights conferred by this Division to do any act to which the person entitled to the right has consented.

and if made in favour of the owner or prospective owner of the copyright in the work or works to which it relates, it is presumed to extend to his licensees and successors in title unless a contrary intention is expressed.

(4) Nothing in this Division is to be construed as excluding the operation of the general law of contract or estoppel in relation to an informal waiver or other transaction in relation to any of the rights mentioned in subsection (1) .

[cf. 1988 c. 48 s. 87 U.K.]

Section 99
�Application of provisions to joint works
�

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(1): The right conferred by section 89 (right to be identified as author or director) is, in the case of a work of joint authorship, a right of each joint author to be identified as a joint author and must be asserted in accordance with section 90b y each joint author in relation to himself.
(2): The right conferred by section 92 (right to object to derogatory treatment of work) is, in the case of a work of joint authorship, a right of each joint author and his right is satisfied if he consents to the treatment in question.
(3): A waiver under section 98 of those rights by one joint author does not affect the rights of the other joint authors.

and such a false attribution infringes the right of every person to whom authorship of any description is, whether rightly or wrongly, attributed.

(5) The provisions of this section also apply (with any necessary adaptations) in relation to a film which was, or is alleged to have been, jointly directed, as they apply to a work which is, or is alleged to be, a work of joint authorship.

A film is “jointly directed” if it is made by the collaboration of 2 or more directors and the contribution of each director is not distinct from that of the other director or directors.

[cf. 1988 c. 48 s. 88 U.K.]

Section 100
�Application of provisions to parts of works
�

(1): The right conferred by section 89 (right to be identified as author or director) applies in relation to the whole or any substantial part of a work.
(2): The rights conferred by section 92 (right to object to derogatory treatment of work) and section 96 (false attribution) apply in relation to the whole or any part of a work.

[cf. 1988 c. 48 s. 89 U.K.]

Section 101
�Assignment and licences
�

DIVISION V DEALINGS WITH RIGHTS IN COPYRIGHT WORKS

(1): Copyright is transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
(2): An assignment or other transmission of copyright may be partial, that is, limited so as to apply—

(a) �to one or more, but not all, of the things the copyright owner has the exclusive right to do;

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(b) to part, but not the whole, of the period for which the copyright is to subsist.

(3): An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor.
(4): A licence granted by a copyright owner is binding on every successor in title to his interest in the copyright, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the copyright owner are construed accordingly.

[cf. 1988 c. 48 s. 90 U.K.]

Section 102
�Prospective ownership of copyright
�

(1) Without prejudice to sections 14 and 15 , where by an agreement made in relation to future copyright, and signed by or on behalf of the prospective owner of the copyright, the prospective owner purports to assign the future copyright (wholly or partially) to another person, then if, on the copyright coming into existence, the assignee or another person claiming under him would be entitled as against all other persons to require the copyright to be vested in him, the copyright vests in the assignee or his successor in title by virtue of this subsection.

(2) In this Part—

“future copyright” means copyright which will or may come into existence in respect of a future work or class of works or on the occurrence of a future event; and

“prospective owner” is construed accordingly, and includes a person who is prospectively entitled to copyright by virtue of such an agreement as is mentioned in subsection (1) .

(3) A licence granted by a prospective owner of copyright is binding on every successor in title to his interest (or prospective interest) in the right, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the copyright owner are construed accordingly.

[cf. 1988 c. 48 s. 91 U.K.]

Section 103
�Exclusive licences
�

(1): In this Part an “exclusive licence” means a licence in writing signed by or on behalf of the copyright owner authorizing the licensee to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the copyright owner.
(2): The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as he has against the person granting the licence.

[cf. 1988 c. 48 s. 92 U.K.]

Section 104
�Copyright to pass under will with unpublished work
�

Legislative Texts

Where under a bequest (whether specific or general) a person is entitled, beneficially or otherwise, to—

(a) �: an original document or other material thing recording or embodying a literary, dramatic, musical or artistic work which was not published before the death of the testator; or
(b) �: an original material thing containing a sound recording or film which was not published before the death of the testator,

then unless a contrary intention is indicated in the testator’s will or a codicil to it, the bequest includes the copyright in the work in so far as the testator was the owner of the copyright immediately before his death.

[cf. 1988 c. 48 s. 93 U.K.]

Section 105
�Moral rights not assignable
�

Moral rights

The rights conferred by Division IV (moral rights) are not assignable.

[cf. 1988 c. 48 s. 94 U.K.]

Section 106
�Transmission of moral rights on death
�

(1): On the death of a person entitled to the right conferred by section 89 (right to identification of author or director) or section 92 (right to object to derogatory treatment of work)—

(2): Where copyright forming part of a person’s estate passes in part to one person and in part to another, as for example where a bequest is limited so as to apply—

any right which passes with the copyright by virtue of subsection (1) is correspondingly divided.

(3) Where by virtue of subsection (1)(a) or (b) a right becomes exercisable by more than one person—

(a) �it may, in the case of the right conferred by section 89 (right to identification of author or director), be asserted by any of them;

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(b) �: it is, in the case of the right conferred by section 92 (right to object to derogatory treatment of work), a right exercisable by each of them and is satisfied in relation to any of them if he consents to the treatment or act in question; and
(c) �: any waiver of the right in accordance with section 98 by one of them does not affect the rights of the others.

(4): A consent or waiver previously given or made binds any person to whom a right passes by virtue of subsection (1) .
(5): Any infringement after a person’s death of the right conferred by section 96 (false attribution) is actionable by his personal representatives.
(6): Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person’s death devolve as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.

[cf. 1988 c. 48 s. 95 U.K.]

Section 107
�Infringement actionable by copyright owner
�

DIVISION VI REMEDIES FOR INFRINGEMENT

Rights and remedies of copyright owner

(1) An infringement of copyright is actionable by the copyright owner.

(2) 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.

(3) This section has effect subject to the following provisions of this Division.

[cf. 1988 c. 48 s. 96 U.K.]

Section 108
�Provisions as to damages in infringement action
�

(1): 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.

award such additional damages as the justice of the case may require.

Legislative Texts

[cf. 1988 c. 48 s. 97 U.K.]

Section 109
�Order for delivery up
�

(1): Where a person—
(a) �: has an infringing copy of a work in his possession, custody or control for the purpose of trade or business; or
(b) �: has in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it has been or is to be used to make infringing copies,

the owner of the copyright in the work may apply to the court for an order that the infringing copy or article be delivered up to him or to such other person as the court may direct.

(2): An application must be made before the end of the period specified in section 110 (period after which remedy of delivery up not available); and the court shall not make an order under this section unless the court also makes, or it appears to the court that there are grounds for making, an order under section 111 (order as to disposal of infringing copy or other article).
(3): A person to whom an infringing copy or other article is delivered up in pursuance of an order under this section shall, if an order under section 111 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

(4) Nothing in this section affects any other power of the court.

[cf. 1988 c. 48 s. 99 U.K.]

Section 110
�Period after which remedy of delivery up not available
�

(1) An application for an order under section 109 (order for delivery up in civil proceedings) may not be made after the end of the period of 6 years from the date on which the infringing copy or article in question was made, subject to the following provisions of this section.

(2): If during the whole or any part of that period the copyright owner—
(a) �: is under a disability; or
(b) �: is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,

an application may be made at any time before the end of the period of 6 years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

(3) In subsection (2) “disability” has the same meaning as in the Limitation Ordinance (Cap 347).

[cf. 1988 c. 48 s. 113 U.K.]

Legislative Texts

Section 111
�Order as to disposal of infringing copy or other article
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(b): destroyed or otherwise dealt with as the court may think fit, or for a decision that no such order should be made.
(2): In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of copyright would be adequate to compensate the copyright owner and to protect his interests.
(3): The power to make rules of court under section 54 of the High Court Ordinance (Cap 4) includes power to make rules of court for the purposes of this section. (Amended 25 of 1998 s. 2)
(4): The rules of court made for the purposes of this section may include rules as to the service of notice on persons having an interest in the copy or other articles, and any such person is
(5): An order under this section does not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
(6): Where there is more than one person interested in a copy or other article, the court may make such order as it thinks just and may (in particular) direct that the copy or article be sold, or otherwise dealt with, and the proceeds divided.
(7): If the court decides that no order should be made under this section, the person in whose possession, custody or control the copy or other article was before being delivered up is entitled to its return.
(8): References in this section to a person having an interest in a copy or other article include any person in whose favour an order could be made in respect of it under this section or under section 231 (which makes similar provision in relation to infringement of rights in performances).

entitled—
(a)	to appear in proceedings for an order under this section, whether or not he was served
	with notice; and
(b)	to appeal against any order made, whether or not he appeared.

[cf. 1988 c. 48 s. 114 U.K.]

Section 112 Rights and remedies of exclusive licensee

Rights and remedies of exclusive licensee

Legislative Texts

(1): An exclusive licensee has, except against the copyright owner, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.
(2): His rights and remedies are concurrent with those of the copyright owner; and references in the relevant provisions of this Part to the copyright owner shall be construed accordingly.
(3): In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the copyright owner.

[cf. 1988 c. 48 s. 101 U.K.]

Section 113
�Exercise of concurrent rights
�

(1): Subject to subsection (2) , where an action for infringement of copyright brought by the copyright owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the copyright owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.
(2): Where an action for infringement of copyright brought by an exclusive licensee relates (wholly or partly) to an infringement in respect of an infringing copy within the meaning of section 35(3) , the exclusive licensee may not, without the leave of the court, proceed with the action unless the copyright owner is joined as a plaintiff.
(3): In an application for leave under subsection (2) to proceed without joining the copyright owner as plaintiff, the court shall not grant leave unless there are exceptional circumstances, other than costs considerations, beyond the control of the copyright owner or exclusive licensee.
(4): A copyright owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.
(5): The provisions of this section do not affect the granting of interlocutory relief on an application by a copyright owner or exclusive licensee alone.

and these provisions apply whether or not the copyright owner and the exclusive licensee are both parties to the action.

Legislative Texts

(7) The copyright owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 109 (order for delivery up); and the court may on the application of the licensee make such order under section 109 as it thinks fit having regard to the terms of the licence.

[cf. 1988 c. 48 s. 102 U.K.]

Section 114
�Remedies for infringement of moral rights
�

Remedies for infringement of moral rights

(1): An infringement of a right conferred by Division IV (moral rights) is actionable as a breach of statutory duty owed to the person entitled to the right.
(2): In proceedings for infringement of the right conferred by section 92 (right to object to derogatory treatment of work) the court may, if it thinks it is an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the court, dissociating the author or director from the treatment of the work.

[cf. 1988 c. 48 s. 103 U.K.]

Section 115
�Presumptions relevant to literary, dramatic, musical and artistic works
�

Presumptions

(1): The following presumptions apply in proceedings brought by virtue of this Division with respect to a literary, dramatic, musical or artistic work.
(3): In the case of a work alleged to be a work of joint authorship, subsection (2) applies in relation to each person alleged to be one of the authors.
(4): Where no name purporting to be that of the author appeared as mentioned in subsection (2) but a name purporting to be that of the publisher appeared on copies of the work as first published, the person whose name appeared is presumed, until the contrary is proved, to have been the owner of the copyright at the time of publication.
(5): If the author of the work is dead or the identity of the author cannot be ascertained by reasonable inquiry, it is presumed, in the absence of evidence to the contrary—

(a) �that the work is an original work; and

Legislative Texts

(b) �that the plaintiff’s allegations as to what was the first publication of the work and as to the country of first publication are correct.

[cf. 1988 c. 48 s. 104 U.K.]

Section 116
�Presumptions relevant to sound recordings, films and computer programs
�

(1) In proceedings brought by virtue of this Division with respect to a sound recording, where copies of the recording as issued or made available to the public bear a label or other mark stating—

(a) �: that a named person was the owner of copyright in the recording at the date of issue or making available of the copies; or
(b) �: that the recording was first published in a specified year or in a specified country,

the label or mark is admissible as evidence of the facts stated and is presumed to be correct until the contrary is proved.

(2) In proceedings brought by virtue of this Division with respect to a film, where copies of the film as issued or made available to the public bear a statement—

(a) �: that a named person was the director or producer of the film;
(b) �: that a named person was the principal director, the author of the screenplay, the author of the dialogue or the composer of music specifically created for and used in the film;
(c) �: that a named person was the owner of copyright in the film at the date of issue or making available of the copies; or
(d) �: that the film was first published in a specified year or in a specified country,

the statement is admissible as evidence of the facts stated and is presumed to be correct until the contrary is proved.

(3) In proceedings brought by virtue of this Division with respect to a computer program, where copies of the program are issued to the public in electronic form or made available to the public bearing a statement—

(a) �: that a named person was the owner of copyright in the program at the date of issue or making available of the copies; or
(b) �: that the program was first published in a specified country or that copies of it were first issued to the public in electronic form or made available to the public in a specified year,

the statement is admissible as evidence of the facts stated and is presumed to be correct until the contrary is proved.

(4): The above presumptions apply equally in proceedings relating to an infringement alleged to have occurred before the date on which the copies were issued or made available to the public.
(5): In proceedings brought by virtue of this Division with respect to a film, where the film as shown in public, broadcast or included in a cable programme service bears a statement—

(a) �that a named person was the director or producer of the film;

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(b) �: that a named person was the principal director of the film, the author of the screenplay, the author of the dialogue or the composer of music specifically created for and used in the film; or
(c) �: that a named person was the owner of copyright in the film immediately after it was made,

the statement is admissible as evidence of the facts stated and is presumed to be correct until the contrary is proved.

This presumption applies equally in proceedings relating to an infringement alleged to have occurred before the date on which the film was shown in public, broadcast or included in a cable programme service.

(6) For the purposes of this section, a statement that a person was the director of a film is to be taken, unless a contrary indication appears, as meaning that he was the principal director of the film.

[cf. 1988 c. 48 s. 105 U.K.]

Section 117
�Presumptions relevant to works subject to Government copyright
�

In proceedings brought by virtue of this Division with respect to a literary, dramatic or musical work in which Government copyright subsists, where there appears on printed copies of the work a statement of the year in which the work was first published commercially, that statement is admissible as evidence of the fact stated and is presumed to be correct in the absence of evidence to the contrary.

$$$

Section 118
�Criminal liability for making or dealing with infringing articles, etc.
�

Expanded Cross Reference:

Sections 115 , 116 , 117

Offences

(1): A person commits an offence if he, without the licence of the copyright owner—
(a) �: makes for sale or hire;
(b) �: imports into Hong Kong otherwise than for his private and domestic use;
(c) �: exports from Hong Kong otherwise than for his private and domestic use;
(d) �: possesses for the purpose of trade or business with a view to committing any act infringing the copyright;

Legislative Texts

(iii) �exhibits in public; or

(iv) �distributes; or

(f) �distributes otherwise than for the purpose of trade or business to such an extent as to affect prejudicially the owner of the copyright,

an infringing copy of a copyright work.

(2) Subsections (1)(b) and (c) and (4)(b) and (c) do not apply to an article in transit.

(3) It is a defence for the person charged with an offence under subsection (1) , to prove that he did not know and had no reason to believe that the copy in question was an infringing copy of the copyright work.

(4): A person commits an offence if he—
(a) �: makes;
(b) �: imports into Hong Kong;
(c) �: exports from Hong Kong;
(d) �: possesses; or
(e) �: sells or lets for hire, or offers or exposes for sale or hire,

an article specifically designed or adapted for making copies of a particular copyright work which article is used or intended to be used to make infringing copies of the copyright work for sale or hire or for use for the purpose of trade or business.

(5): It is a defence for the person charged with an offence under subsection (4) to prove that he did not know and had no reason to believe that the article was used or was intended to be used to make the infringing copies for sale or hire or for use for the purpose of trade or business.

he has proved that he had no reason to believe that the copy in question was an infringing copy of the copyright work.

(7) In determining whether the person charged has proved under subsection (6) that he had no reason to believe that the copy in question was an infringing copy of the work, the court may have regard to, including but not limited to, the following—

(a) �: whether he had made enquiries with a relevant trade body in respect of that category of work;
(b) �: whether he had given any notice drawing attention of the copyright owner or exclusive licensee to his interest to import and to sell the copy of the work;

Legislative Texts

(c) �: whether he had complied with any code of practice that may exist in respect of the supply of that category of work;
(d) �: whether the response, if any, to those enquiries made by the defendant was reasonable and timely;
(e) �: whether he was provided with the name, address and contact details of the copyright owner or exclusive licensee (as the case may be);
(f) �: whether he was provided with the date of first day of publication of the work;
(g) �: whether he was provided with proof of any relevant exclusive licence.

(8): A person commits an offence if he has in his possession an article knowing or having reason to believe that it is used or is intended to be used to make infringing copies of any copyright work for sale or hire or for use for the purpose of trade or business.
(9): Sections 115 to 117 (presumptions as to various matters connected with copyright) do not apply to proceedings for an offence under this section. <* Note-Exp. X-Ref.: Sections 115 , 116 , 117 *>

[cf. 1988 c. 48 s. 107 U.K.]

Section 119
�Penalties for offences under section 118
�

(1): A person who commits an offence under section 118(1) is liable on conviction to a fine at level 5 in respect of each infringing copy and to imprisonment for 4 years.
(2): A person who commits an offence under section 118(4) or (8) is liable on conviction on indictment to a fine of $500000 and to imprisonment for 8 years.

Section 120
�Making infringing copies outside Hong Kong, etc.
�

Expanded Cross Reference:

Sections 115 , 116 , 117

(1): A person commits an offence if he makes outside Hong Kong, for export to Hong Kong otherwise than for his private and domestic use, any article that he knows would, if it were made in Hong Kong, constitute an infringing copy of a copyright work.
(2): A person commits an offence if he makes outside Hong Kong an article specifically designed or adapted for making copies of a particular copyright work knowing or having reason to believe that it is to be used or is intended to be used in Hong Kong for making an infringing copy of the copyright work for sale or hire or for use for the purpose of trade or business.
(3): A person commits an offence if he makes outside Hong Kong or exports from Hong Kong an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that—

(a) �the article is to be used or is intended to be used outside Hong Kong for making another article for export to Hong Kong; and

Legislative Texts

(b) �the latter article mentioned in paragraph (a) would, if it were made in Hong Kong, constitute an infringing copy of the copyright work.

(4): A person who, in Hong Kong or elsewhere, aids, abets, counsels or procures the commission by another person of an offence under subsection (1) , (2) or (3) commits that offence as a principal.
(5): The offences under subsections (1) , (2) and (3) are without prejudice to the offences under section 118 .
(8): Sections 115 to 117 (presumptions as to various matters connected with copyright) do not apply to proceedings for an offence under this section. <* Note-Exp. X-Ref.: Sections 115, 116 , 117 *>

Section 120A Time limit for prosecutions

No prosecution for an offence under this Ordinance shall be commenced after the expiration of 3 years from the date of commission of the offence or 1 year from the date of discovery of the offence by the prosecutor, whichever is the earlier.

(Added 22 of 1998 s. 44)

Section 121 Affidavit evidence

Supplementary

(1) An affidavit which purports to have been made by or on behalf of the owner of a copyright work and which states—

(a)	the date and place that the work was made or first published;
(b)	the name, domicile, residence or right of abode of the author of the work;
(c)	the name of the owner of the work;
(d)	that copyright subsists in the work; and
(e)	that a copy of the work exhibited to the affidavit is a true copy of the work,

shall, subject to the conditions contained in subsection (4) , be admitted without further proof in any proceedings under this Ordinance.

(2) Without prejudice to subsection (1) , an affidavit which purports to have been made by or on behalf of the owner of a copyright work and which—

(a) �states—

(i) �: that the copyright work has been registered with a Copyright Register prescribed under subsection (14) ; and
(ii) �: that copyright subsists in the work; and

Legislative Texts

(iii) �the name of the owner of the work; and

(b) �has exhibited to it a copy of the certificate of registration of the work issued by the authority in charge of the Copyright Register certified to be a true copy by a person specified in subsection (4)(a) ,

shall, subject to the conditions contained in subsection (4) , be admitted without further proof in any proceedings under this Ordinance.

(5): Notwithstanding that an affidavit is admissible as evidence by virtue of this section, a defendant or his solicitor may, within 3 days from the service of the copy of the affidavit, serve a notice requiring the attendance of the deponent to the affidavit in court.

Legislative Texts

genuinely in issue, either before or during the hearing, require the deponent to attend before the court and give evidence.

(9): Without prejudice to subsection (8)(a) , a deponent of an affidavit which is admissible under this section shall attend before the court and give evidence if, and only if, the court so requires under subsection (8)(b) .
(10): So much of an affidavit as is admitted in evidence by virtue of this section is, unless the court otherwise directs, to be read aloud at the hearing and where the court so directs an account is to be given orally of so much of any affidavit as is not read aloud.
(14): In awarding awards under subsection (13) , the court shall have regard to the actual costs incurred by the prosecution or plaintiff as a result of the notice under subsection (5) served by the defendant and the court may award costs under subsection (13) exceeding the limit of costs, if any, which that court may award.
(15): For the purpose of subsection (1)(e) , where the work is a computer program, whether in source codes or object codes, a copy of the program only in the form of object codes is also regarded as a true copy of the program.
(16): The Secretary for Trade and Industry may by regulation prescribe the Copyright Registers for the purpose of subsection (2) .

(17) In this section, “court” includes a magistrate.

Section 122
�Powers of investigating Officers
�

(1): An authorized officer may—
(a) �: (i) subject to section 123 , enter and search any place; (Amended 22 of 1998 s. 45)

(ii) �stop, board and search any vessel (other than a ship of war) or any aircraft (other than a military aircraft); or

(iii) �stop and search any vehicle (other than a military vehicle), in which he reasonably suspects that there is—

Legislative Texts

(A): an article which is an infringing copy of a copyright work;
�
(B) �: an article specifically designed or adapted for making copies of a particular copyright work which article is used or intended to be used for making infringing copies of any such work; or
(C) �: anything which appears to him to be or to contain, or to be likely to be or to contain, evidence of an offence under this Part; and

(2): An authorized officer may—
(a) �: break into and forcibly enter any place which he is empowered or authorized by this Part to enter and search; (Amended 22 of 1998 s. 45)
(b) �: forcibly board any vessel, aircraft or vehicle which he is empowered by this Part to stop, board and search;
(c) �: remove by force any person or thing obstructing him in the exercise of any power conferred on him by this Part;
(d) �: detain any person found in any place which he is empowered or authorized by this Part to search until such place has been searched;
(e) �: prevent any person from approaching or boarding any vessel, aircraft or vehicle which he is empowered by this Part to stop, board and search until it has been searched.

(3) An authorized officer may call upon any authorized officer to assist him in the exercise of any of his powers under this section. (Added 22 of 1998 s. 45)

Section 123
�Authority to issue warrant for entry and search
�

(1): A magistrate may, if he is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any place any article or thing which may be seized, removed or detained under section 122(1)(b) , issue a warrant authorizing an authorized officer to enter and search the place.
(2): Subject to subsection (3) , an authorized officer shall not enter and search any place under section 122(1)(a)(i) except under the authority of a warrant issued under this section.
(3): An authorized officer may enter and search any place under section 122(1)(a)(i) without a warrant issued under this section if the delay necessary to obtain a warrant could result in the loss or

Legislative Texts

destruction of evidence or for any other reason it would not be reasonably practicable to obtain a warrant.

(Replaced 22 of 1998 s. 46)

Section 124
�Obstruction of investigating officers
�

(1): Without prejudice to any other Ordinance, any person who—
(a) �: wilfully obstructs an authorized officer in the exercise of his powers or the performance of his duties under this Ordinance;
(b) �: wilfully fails to comply with any requirement properly made to him by any such authorized officer; or
(c) �: without reasonable excuse, fails to give such authorized officer any other assistance which he may reasonably require to be given for the purpose of exercising his powers or performing his duties under this Ordinance,

is guilty of an offence and is liable on conviction to a fine at level 4 and to imprisonment for 3 months.

(2): Any person who, when required to give information to an authorized officer in the exercise of his powers or the performance of his duties under this Ordinance, knowingly gives false or misleading information to any such authorized officer is guilty of an offence and is liable on conviction to a fine at level 4 and to imprisonment for 3 months.
(3): Nothing in this section requires any person to give any information which may incriminate him.

Section 125
�Liability of persons other than principal offender
�

(1): Where a body corporate commits an offence under this Ordinance in respect of any act which is shown to have been committed with the consent or connivance of, or to be attributable to any act on the part of, any director, manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity he, as well as the body corporate, commits the offence.
(2): Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts of a member in connection with his functions of management as if he were a director of the body corporate.
(3): Where an offence under this Ordinance committed by a partner in a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any act on the part of, any other partner of the partnership or any person concerned in the management of the partnership, that other partner or the person concerned in the management of the partnership commits the like offence.

Section 126
�Disclosure of information, etc.
�

Remarks:

Legislative Texts

Amendments retroactively made - see 25 of 1998 s. 2

(1) Where any article seized or detained under section 122 is, or is reasonably suspected by the Commissioner to be—

(a) �: an infringing copy of a copyright work; or
(b) �: an article specifically designed or adapted for making copies of a particular copyright work which has been used, or is intended to be used, for the making of infringing copies of any such work,

the Commissioner shall, wherever reasonably practicable, notify the owner of the copyright in question or his authorized agent of the seizure or detention, as the case may be.

(2)In the circumstances specified in subsection (1) , the Commissioner may disclose to the owner of the copyright or to his authorized agent—

(a) �: the time, and the address or place, of seizure or detention of the article;
(b) �: the name and address of the person from whom the article has been seized or detained;
(c) �: the nature and quantity of articles seized or detained;
(d) �: any statement made to the Commissioner or an authorized officer by the person in connection with the seizure or detention, either with the prior consent in writing of that person or without such consent where the person is dead or cannot after reasonable enquiries by the Commissioner as to his whereabouts be found by the Commissioner; and
(e) �: any other information or document relating to the article seized or detained which the Commissioner thinks fit to disclose.
(3): The owner of the copyright or his authorized agent—
(a) �: where he seeks disclosure of any information or document that is not referred to in subsection (2) ; or
(b) �: where information or a document that is referred to in subsection (2) is not disclosed by the Commissioner,

may apply to the Court of First Instance for an order requiring the Commissioner to disclose such information or document and the Court of First Instance may on such an application make such order for disclosure as it thinks fit. (Amended 25 of 1998 s. 2)

(4) An application under subsection (3) may be begun by motion with previous notice to the Commissioner.

Section 127
�Protection of informers in criminal proceedings
�

(1): Save where, in the opinion of the court, justice so requires, the name or identity of any informer and the information given by such informer shall not be disclosed in any criminal proceedings under this Part.
(2): The court may make any order and adopt any procedure necessary to prevent any such disclosure.

Legislative Texts

Section 128
�Inspection of articles, release of samples, etc.
�

(1) Where an article seized or detained under section 122 is, or is reasonably suspected by the Commissioner to be—

(a) �: an infringing copy of a copyright work; or
(b) �: an article specifically designed or adapted for making copies of a particular copyright work which has been used, or is intended to be used, for the making of infringing copies of any such work,

the Commissioner or an authorized officer may give the owner of the copyright work in question or his authorized agent or the person from whom the article was seized sufficient opportunity to inspect the article for the purposes of ascertaining whether the article is an infringing copy of the copyright work or is an article specifically designed or adapted for making infringing copies of the copyright work.

(2): Where more than one article is seized or detained under section 122, the Commissioner or an authorized officer may permit the owner of the copyright or his authorized agent or the person from whom the articles were seized or detained to remove samples of the seized or detained articles if the Commissioner or authorized officer considers it necessary for the purpose of ascertaining whether the articles are infringing copies of the copyright work or are articles specifically designed or adapted for making copies of the copyright work on condition that the owner or agent or person, as the case may be, gives the Commissioner or authorized officer the requisite undertakings.

Section 129
�Multilateral co-operation
�

The Commissioner may, for the purpose of promoting multi-lateral co-operation in the protection of intellectual property rights, disclose information obtained in pursuance of this Ordinance to the customs authorities or other authorities responsible for the enforcement of intellectual property rights of—

Legislative Texts

(a) �: any country, territory or area which is, at the relevant time, a member of the World Trade Organization; or
(b) �: such other country, territory or area as the Commissioner thinks fit.

Section 130
�Offences relating to disclosure of information
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(3): Any person who commits an offence under subsection (1) is liable on conviction to a fine at level 4 and to imprisonment for 1 year.

Section 131
�Seized articles, etc. liable to forfeiture
�

Remarks:

Amendments retroactively made - see 22 of 1999 s. 3

(1): Any article, vessel, aircraft, vehicle or thing seized or detained by an authorized officer under section 122 is liable to forfeiture in accordance with the following provisions whether or not any person has been charged of an offence under section 118o r 120 .
(2): The Commissioner shall, subject to subsection (3) and not later than 30 days beginning on the date of the seizure or detention of the article, vessel, aircraft, vehicle or thing serve notice of the seizure or detention on a person who was to the knowledge of the Commissioner at the time of, or immediately after seizure or detention, an owner of the article, vessel, aircraft, vehicle or thing.
(3): Subsection (2) does not apply if the article, vessel, aircraft, vehicle or thing was seized or detained in the presence of—

Legislative Texts

(a) �: an owner, or an employee or agent of the owner, of the article, vessel, aircraft, vehicle or thing;
(b) �: the person whose offence or suspected offence gave rise to the seizure or detention; or
(c) �: in the case of a vessel, aircraft or vehicle, the master or person in charge.
(4): A notice given under subsection (2) is deemed to have been duly served if—
(a) �: it is delivered to the person on whom it is served;
(b) �: it is sent by registered post addressed to such person at the place of residence or business of such person, if any, known to the Commissioner; or
(c) �: where it cannot be served in accordance with paragraph (a) or (b) , the notice is exhibited at the Customs and Excise Department, in a place to which the public have access, for a period of not less than 7 days commencing within 30 days from the date of the seizure or detention of the article, vessel, aircraft, vehicle or thing.

(5) If an article, vessel, aircraft, vehicle or thing is liable to forfeiture under subsection (1) , the owner or the authorized agent of the owner thereof, or a person who was in possession thereof at the time of seizure or detention, or a person who has a legal or equitable interest in it, may within 30 days beginning—

(a) �: on the date of the seizure or detention; or

(iii) �exhibited as described in subsection (4)(c) , on the first day it is so exhibited,

give notice in writing to the Commissioner of his full name and address for service in Hong Kong and claim that the article, vessel, aircraft, vehicle or thing is not liable to forfeiture.

(6): A claimant may withdraw a notice of a claim at any time by notice in writing to the Commissioner.
(7): Except where a person is charged with an offence under section 118 or 120 in connection with the seized or detained article, vessel, aircraft, vehicle or thing, if on the date of the expiration of the appropriate period of time specified in subsection (5) for the giving of a notice of claim no such notice has been given in writing to the Commissioner, the article, vessel, aircraft, vehicle or thing is forfeited forthwith to the Government. (Amended 22 of 1999 s. 3)

Section 132
�Disposal of articles, etc. where a person is charged
�

Remarks:

Amendments retroactively made - see 22 of 1999 s. 3

Without prejudice to section 131 , where a person is charged with an offence under section 118 or 120 the court may, if it is satisfied that any article, vessel, aircraft, vehicle or thing seized or detained by an authorized officer under section 122i n connection with the offence—

(a) �is an infringing copy of a copyright work;

Legislative Texts

(b) �: is an article specifically designed or adapted for making copies of a particular copyright work which article has been used, or is intended to be used, for making infringing copies of any such work; or
(c) �: has been used in connection with any offence under this Ordinance,

order that the article, vessel, aircraft, vehicle or thing be—

(i) �: forfeited to the Government; (Amended 22 of 1999 s. 3)
(ii) �: delivered up to the person who appears to the court to be the owner of the copyright concerned; or

(iii) �disposed of in such other way as the court may think fit,

whether or not the person charged is convicted of the offence with which he was charged.

Section 133
�Determination of application for forfeiture
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2; 22 of 1999 s. 3

(1): Where a notice of claim is given under section 131 , the Commissioner or an authorized officer shall apply to a magistrate, the District Court or the Court of First Instance for the forfeiture of the article, vessel, aircraft, vehicle or thing unless the Commissioner is satisfied, within a reasonable period after the receipt of the notice of claim, that, on the basis of the evidence of the case, the article, vessel, aircraft, vehicle or thing concerned should be delivered to the claimant. (Amended 25 of 1998 s. 2)
(2): The Commissioner or authorized officer shall state in the application the name and address of the claimant.
(3): Where an application under subsection (1) is made to a magistrate, the magistrate shall issue a summons to the claimant, requiring him to appear before a magistrate upon the hearing of the application, and shall cause a copy of such summons to be served upon the Commissioner.
(4): Where an application under subsection (1) is made to the District Court or the Court of First Instance, it may be begun by motion. (Amended 25 of 1998 s. 2)
(5): Where the claimant is the defendant in criminal proceedings under section 118 or 120 in connection with the seized or detained article, vessel, aircraft, vehicle or thing and there is no other claimant, on an application made in that behalf by the Commissioner, the court may hear the forfeiture application immediately following the criminal proceedings and for the purposes of a hearing under this subsection, any requirement in respect of the issue or service of a summons or any notice of the hearing under or by virtue of subsection (3) or (4) , as the case may be, does not apply.
(6): Where there is more than one claimant and one of them is the defendant in criminal proceedings under section 118 or 120 in connection with the seized or detained article, vessel, aircraft, vehicle or thing, on an application made in that behalf by the Commissioner, the court may hear the forfeiture application immediately following the criminal proceedings.

Legislative Texts

(7): If, upon the hearing of an application under subsection (1) , the claimant or some other person who, though not the claimant, was, or would have been, entitled to make a claim under section 131(5) , appears before a court, the court shall hear the application.

on his claim as to why it should not be forfeited.

(9) If, upon the hearing of an application under subsection (1) , neither the claimant nor any person who, though not the claimant, was, or would have been, entitled to make a claim under section 131(5) , appears before a court and the court is satisfied—

(a) �: that the summons or the notice of the hearing (if any) required to be served under subsection (3) or (4) , as the case may be, was served;
(b) �: that a person at the address for service or a solicitor nominated to accept service on behalf of a claimant has refused to accept service of the summons or notice of the hearing referred to in paragraph (a) ; or
(c) �: that the address for service given to the Commissioner is inadequate for the purpose of effecting service of the summons or the notice of hearing referred to in paragraph (a) ,

the court shall hear and determine the application without requiring further inquiry as to the whereabouts of the claimant.

(10): An application under subsection (1) to a magistrate is deemed to be a complaint for the purposes of section 8 of the Magistrates Ordinance (Cap 227).

Legislative Texts

order that the article, vessel, aircraft, vehicle or thing—

(i) �: be forfeited to the Government; (Amended 22 of 1999 s. 3)
(ii) �: subject to subsection (13) , be delivered to the claimant subject to any condition which it may specify in the order; or

(iii) �be disposed of in such manner and subject to such condition as it may specify in the order.

(13): The court shall not make an order under subsection (12)(ii) in respect of an article unless the claimant satisfies the court that the article is not an infringing copy of any copyright work or, as the case may be, is not an article specifically designed or adapted to make copies of any particular copyright work which article is used or is intended to be used, for making infringing copies of any such work.
(15): Unless the context otherwise requires, a reference to a court in this section or section 132 includes a reference to a magistrate.

Section 134
�Jurisdiction of District Court
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1): The District Court may entertain proceedings under—
(a) �: section 109 (order for delivery up of infringing copy or other article);
(b) �: section 111 (order as to disposal of infringing copy or other article); or
(c) �: section 113(7) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights),

where the value of the infringing copies, or the alleged infringing copies, and other articles in question does not exceed the limit for actions in tort set out in section 32 of the District Court Ordinance (Cap 336).

(2) Nothing in this section affects the jurisdiction of the Court of First Instance. (Amended 25 of 1998 s. 2)

[cf. 1988 c. 48 s. 115 U.K.]

Section 135
�Definitions
�

Legislative Texts

DIVISION VII PROCEEDINGS RELATING TO IMPORTATION OF INFRINGING ARTICLES

In this Division—

“detention order” means an order made under section 137(1) ;

“right holder” means the owner or exclusive licensee of the copyright that subsists in a work under this Ordinance.

Section 136
�Application for detention order
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1): A right holder may apply to the Court of First Instance for an order under section 137(1) where he has reasonable grounds for suspecting that the importation of an article that constitutes an infringing copy of the work in respect of which he is a right holder may take place. (Amended 25 of 1998 s. 2)
(2): An application under subsection (1) may be made ex parte but with previous notice to the Commissioner.
(5): No application may be made under subsection (1) with respect to the importation by a person of an article for his private and domestic use.

Legislative Texts

(6) Section 121 applies in respect of an affidavit made in accordance with subsection (3) by the exclusive licensee of the copyright that subsists in a work under this Part in the same manner as it would apply if the affidavit were made by the owner of the copyright.

Section 137
�Issuance of detention order
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1): Where, on the hearing of an application made under section 136, the right holder presents adequate evidence to satisfy the Court of First Instance that the article in question is prima facie an infringing copy, the Court of First Instance may make an order directing the Commissioner or an authorized officer to take reasonable measures to seize or detain the article on or after its importation.
(2): The Court of First Instance may require the right holder to provide security or an equivalent assurance in an amount sufficient to protect the importer and any other person having an interest in the article to be seized or detained, including the consignee and the owner of the article, from any loss or damage that may be incurred in the event that the seizure or detention is wrongful or the article is released to the importer under section 138(6) .
(3): A detention order may contain such terms and conditions as the Court of First Instance considers appropriate.
(4): The Court of First Instance shall not make a detention order with respect to any article that has been seized or detained by, and that is in the custody of, the Commissioner or an authorized officer pursuant to any law.
(5): Where the Commissioner or an authorized officer seizes or detains an article pursuant to any law, other than this Division or Division III of Part III , any detention order made with respect to that article ceases to have effect.
(6): Where the Court of First Instance makes a detention order, the right holder shall forthwith serve a copy of the order on the Commissioner.
(7): A detention order has effect from the date on which it is made or such later date as may be specified by the Court of First Instance and ceases to have effect 60 days from that date unless the Commissioner or an authorized officer has, pursuant to the order and within that period, seized or detained any article to which the order applies.

(Amended 25 of 1998 s. 2)

Section 138
�Enforcement of detention order
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1) Where a detention order is served on the Commissioner, the Commissioner or an authorized officer shall, subject to the terms and conditions of the order, seize or detain any article to which the order applies.

Legislative Texts

(2): The right holder shall—
(a) �: supply to the Commissioner or an authorized officer sufficient information on the article and the particular importation to render the article recognizable and the shipment or particular importation identifiable and any other information the Commissioner or an authorized officer may reasonably require for the purpose of carrying out the detention order;
(b) �: deposit with the Commissioner an amount that is, in the opinion of the Commissioner, sufficient to reimburse the Government for the costs likely to be incurred in connection with the carrying out of the detention order; and
(c) �: upon notification in writing by the Commissioner or an authorized officer of the seizure or detention of the article, provide such storage space and other facilities as he may require.

(3): The Commissioner or an authorized officer may refuse to carry out the detention order if the right holder fails to comply with subsection (2) .
(4): The Commissioner may, after giving written notice to the right holder, apply to the Court of First Instance for directions in carrying out the detention order, and the Court of First Instance may, after giving the right holder an opportunity to be heard, give such directions as it thinks fit. (Amended 25 of 1998 s. 2)
(6): Subject to subsection (7) and to any law authorizing the Commissioner or an authorized officer to seize or detain articles, the Commissioner or an authorized officer shall release any article that has been seized or detained pursuant to a detention order to the importer if the right holder has not, within a period of 10 days after notice of the seizure or detention is given to the right holder, notified the Commissioner in writing that an action for infringement in respect of the article has been brought under this Part.
(7): The Court of First Instance may, on application by the right holder, after giving the Commissioner and each person to whom notice is required to be given under subsection (5) an opportunity to be heard, extend the period referred to in subsection (6) by a period not exceeding an additional 10 days if it is satisfied that the request for the extension is reasonable. (Amended 25 of 1998 s. 2)
(8): In proceedings under subsection (7) , the Court of First Instance may require the right holder to provide security or an equivalent assurance in addition to that provided in accordance with section 137(2) . (Amended 25 of 1998 s. 2)
(9): Where the right holder has, within the period referred to in subsection (6) , as may be extended under subsection (7) , notified the Commissioner in writing that an action for infringement in respect of the article has been brought under this Part, the Commissioner or an authorized officer shall retain custody of the article subject to the direction of the court in the infringement proceedings.
(10): No public holiday, gale warning day or black rainstorm warning day is reckoned in the computation of the period referred to in subsection (6) , as may be extended under subsection (7) .

Legislative Texts

(11) In this section—

“black rainstorm warning day” means any day throughout or for part of which a black rainstorm warning is in force, and “black rainstorm warning” means a warning issued by the Director of the Royal Observatory of a heavy rainstorm in, or in the vicinity of, Hong Kong by the use of the heavy rainstorm signal commonly referred to as Black;

“gale warning day” means any day throughout or for part of which a gale warning is in force, and “gale warning” has the meaning assigned to it by section 2 of the Judicial Proceedings (Adjournment During Gale Warnings) Ordinance (Cap 62).

Section 139
�Variation or setting aside of detention order
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1): The Commissioner or the right holder may at any time apply to the Court of First Instance to vary the detention order.
(2): The importer or any other person affected by the detention order may at any time apply to the Court of First Instance to vary or set aside the order.
(3): A person who makes an application under subsection (1) or (2) shall give to the other parties such notice of the day fixed for the hearing of the application as a judge of the Court of First Instance may order.
(4): On the hearing of an application under subsection (1) or (2) to vary the detention order, the Court of First Instance may vary the order in such manner as it thinks just.

(Amended 25 of 1998 s. 2)

Section 140
�Disclosure of information
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1) Where an article is seized or detained pursuant to a detention order, the Commissioner may disclose to the right holder—

Legislative Texts

(a) �: the names and addresses of the importer, the consignor and the consignee;
(b) �: the nature and quantity of articles seized or detained pursuant to the order;
(c) �: any statement made to the Commissioner or an authorized officer by any person in connection with the seizure or detention, either with the prior consent in writing of that person or without such consent where the person is dead or cannot after reasonable enquiries by the Commissioner as to his whereabouts be found by the Commissioner; and
(d) �: any other information or document relating to any article seized or detained pursuant to the order which the Commissioner thinks fit to disclose.
(2): Where the right holder seeks disclosure of—
(a) �: any information or document that is not referred to in subsection (1) ; or
(b) �: any information or document that is referred to in subsection (1) but which the Commissioner has not disclosed,

he may apply to the Court of First Instance for an order requiring the Commissioner to disclose such information or document and the Court of First Instance may on such an application make such order for disclosure as it deems fit. (Amended 25 of 1998 s. 2)

(3) An application under subsection (2) may be begun by motion with previous notice to the Commissioner.

Section 141
�Inspection of articles, release of samples, etc.
�

Remarks:

The definitions of “register”, “Registrar” and “registration” in subsection (4) not yet in operation.

(2): Where more than one article is seized or detained pursuant to a detention order, the Commissioner or an authorized officer may permit the right holder or the importer to remove samples of the seized or detained articles if the right holder or the importer, as the case may be, gives the Commissioner or authorized officer the requisite undertakings.
(4): If the Commissioner or an authorized officer permits the inspection of any seized or detained article, or the removal of a sample, by the right holder in accordance with this section, the

Legislative Texts

Government is not liable to the importer for any loss or damage suffered by the importer arising out of—

(a) �: damage to any article incurred during the inspection; or
(b) �: anything done by the right holder or any other person to, or in relation to, a sample removed by the right holder or any use made by the right holder of such sample.

Section 142
�Costs payable
�

(1): The Commissioner may assess the costs incurred by the Government in connection with the carrying out of a detention order and may deduct those costs from the amount paid as a deposit by the right holder under section 138(2) .
(2): Any costs assessed under subsection (1) shall be payable by the right holder to the Government and recoverable as a civil debt.

Section 143
�Compensation payable to importer, etc.
�

Remarks:

Amendments retroactively made — see 25 of 1998 s. 2

(3): On an application under subsection (1) or (2) , the Court of First Instance may make such order for compensation as it deems fit.

(Amended 25 of 1998 s. 2)

Section 144
�Rules
�

Remarks:

Legislative Texts

Amendments retroactively made — see 25 of 1998 s. 2

The power to make rules of court under section 54 of the High Court Ordinance (Cap 4) includes power to make rules of court regulating and prescribing the procedure and the practice to be followed in the Court of First Instance under this Division, and any matter incidental to or relating to that procedure or practice, including rules prescribing any matter or thing that under this Division is to be or may be prescribed by rules of court.

(Amended 25 of 1998 s. 2)

Section 145
�Licensing schemes and licensing bodies
�

Remarks:

Not yet in operation.

DIVISION VIII COPYRIGHT LICENSING

(1): In this Part a “licensing scheme” means a scheme setting out—
(a) �: the classes of case in which the operator of the scheme, or the person on whose behalf he acts, is willing to grant copyright licences; and
(b) �: the terms on which licences would be granted in those classes of case, and for this purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or as a tariff or by any other name.

(2): In this section “copyright licences” means licences to do, or authorize the doing of, any of the acts restricted by copyright.

“licensing body” means a society or other organization, whether registered under section 149 or not, which has as its main object, or one of its main objects, the negotiation or granting, either as owner or prospective owner of copyright or as agent for him, of copyright licences, and whose objects include the granting of licences covering works of more than one author;

“register” means the register of copyright licensing bodies established under section 147 ;

“Registrar” means the Registrar of Copyright Licensing Bodies specified in section 146 ;

“registration” means the entry of the name of a licensing body in the register in accordance with section 149 and “registered” is construed accordingly.

[cf. 1988 c. 48 s. 116 U.K.]

Legislative Texts

Section 146
�Registrar of Copyright Licensing Bodies
�

Remarks: Not yet in operation. Registration of licensing bodies The Director of Intellectual Property is the Registrar of Copyright Licensing Bodies.

Section 147
�Maintenance of register and inspection
�

Remarks:
�Not yet in operation.
�

(1): The Registrar shall establish and maintain a register of copyright licensing bodies in such form and manner as he determines and containing such particulars as he thinks fit.
(2): The register is to be open for inspection in such place and in such manner and subject to the payment of such appropriate fee as may be specified by the Registrar by notice in the Gazette.

Section 148
�Application for registration and renewal
�

Remarks:
�Not yet in operation.
�

(1): A licensing body may apply for registration or renewal of registration in such form and manner as may be specified by the Registrar.

(3): An application by a body corporate may be signed by any person authorized in that behalf by such body corporate and the Registrar may require such proof of that authorization as he considers necessary.

Section 149
�Registration, issue of certificate of registration
�

Remarks:

Legislative Texts

Not yet in operation.

(1): The Registrar may approve an application for registration and enter the name of the applicant in the register if the Registrar is satisfied—

(2): Upon entry of the name of the applicant in the register, the Registrar shall issue to the applicant a certificate of registration in such form as the Registrar determines specifying the requirements with respect to—

Section 150
�Change of royalty charges during currency of certificate
�

(1): A registered licensing body which proposes to charge copyright royalty charges otherwise than in accordance with the scales last published on registration or on renewal of registration shall notify the Registrar in writing together with sufficient particulars of the proposed new scales of charges at least one month before the new scales come into effect.
(2): The licensing body shall make available to the public the information relating to the new scales of copyright royalty charges for different uses at least by the means specified in section 149(1)(b) at least 14 days before the new scales come into effect.
(3): The registration of a licensing body which fails to comply with subsection (1) or (2) or both subsections is deemed to be cancelled from the date when the new scales come into effect.

Section 151
�Duration of registration, renewal and cancellation
�

(1): A certificate of registration is valid for a period of 12 months, or such lesser period as may be specified in the certificate, from the date on which it is granted.
(2): A registered licensing body may apply for the renewal of its registration for a period not exceeding 12 months.
(3): An application for the renewal of registration must be made at least one month before the expiry of the current registration.

Legislative Texts

(6): The Registrar shall remove the name of the licensing body from the register if its application for renewal of registration is declined or its registration is cancelled.

Section 152
�Regulations
�

The Secretary for Trade and Industry may by regulation—

(a) �: prescribe the fees for the application for registration and for renewal of registration; and
(b) �: provide for the better carrying into effect of this system of registration.

Section 153 No liability in the case of the bona fide exercise of functions under this Division

(1) No liability is incurred by the Registrar in respect of anything done or omitted to be done by him bona fide in the exercise or purported exercise of any functions conferred or imposed by or under this Division.

(2) In this section “functions” includes powers and duties.

Section 154
�Licensing schemes to which sections 155 to 160 apply
�

Expanded Cross Reference:

Sections 155 , 156 , 157 , 158 , 159 , 160

References and applications with respect to licensing schemes

Sections 155 to 160 (references and applications with respect to licensing schemes) apply to licensing schemes operated by licensing bodies which cover works of more than one author, so far as they relate to licences for-<* Note-Exp. X-Ref.: Sections 155 , 156 , 157 , 158 , 159 , 160 *>

(a) �: copying the work;
(b) �: where the work is a computer program or sound recording, the rental of copies of the work to the public;
(c) �: performing, playing or showing the work in public;
(d) �: broadcasting the work or including it in a cable programme service;

Legislative Texts

(e) �: issuing or making available copies of the work to the public;
(f) �: making adaptations of the work; or
(g) �: any other act restricted by the copyright in the work,

and references in those sections to a licensing scheme are to be construed accordingly.

[cf. 1988 c. 48 s. 117 U.K.]

Section 155
�Reference of proposed licensing scheme to Tribunal
�

(1): An organization claiming to be representative of persons claiming that they require licences in cases of a description to which the scheme would apply, either generally or in relation to any description of case, may refer the terms of a licensing scheme proposed to be operated by a licensing body to the Copyright Tribunal.
(2): The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
(3): If the Tribunal decides to entertain the reference it shall consider the matter referred and make such order, either confirming or varying the proposed scheme, either generally or so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(4): The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

[cf. 1988 c. 48 s. 118 U.K.]

Section 156
�Reference of licensing scheme to Tribunal
�

(1) If while a licensing scheme is in operation a dispute arises between the operator of the scheme and—

(a) �: a person claiming that he requires a licence in a case of a description to which the scheme applies; or
(b) �: an organization claiming to be representative of such persons,

that person or organization may refer the scheme to the Copyright Tribunal in so far as it relates to cases of that description.

(2): A scheme which has been referred to the Tribunal under this section remains in operation until proceedings on the reference are concluded.
(3): The Tribunal shall consider the matter in dispute and make such order, either confirming or varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(4): The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

[cf. 1988 c. 48 s. 119 U.K.]

Legislative Texts

Section 157
�Further reference of scheme to Tribunal
�

(1) Where the Copyright Tribunal has on a previous reference of a licensing scheme under section 155 or 156 , or under this section, made an order with respect to the scheme, then, while the order remains in force—

(a) �: the operator of the scheme;
(b) �: a person claiming that he requires a licence in a case of the description to which the order applies; or
(c) �: an organization claiming to be representative of such persons,

may refer the scheme again to the Tribunal so far as it relates to cases of that description.

(3): A scheme which has been referred to the Tribunal under this section and which is in operation remains in operation until proceedings on the reference are concluded.
(4): The Tribunal shall consider the matter in dispute and make such order, either confirming, varying or further varying the scheme so far as it relates to cases of the description to which the reference relates, as the Tribunal may determine to be reasonable in the circumstances.
(5): The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

[cf. 1988 c. 48 s. 120 U.K.]

Section 158
�Application for grant of licence in connection with licensing scheme
�

(1): A person who claims, in a case covered by a licensing scheme, that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked, may apply to the Copyright Tribunal for an order under this section.

may apply to the Tribunal for an order under this section.

(3) A case is regarded as excluded from a licensing scheme for the purposes of subsection (2) if—

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(a) �: the scheme provides for the grant of licences subject to terms excepting matters from the licence and the case falls within such an exception; or
(b) �: the case is so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be dealt with in the same way.

(4): If the Tribunal is satisfied that the claim is well-founded, it shall make an order declaring that, in respect of the matters specified in the order, the applicant is entitled to a licence on such terms as the Tribunal may determine to be applicable in accordance with the scheme or, as the case may be, to be reasonable in the circumstances.
(5): The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

[cf. 1988 c. 48 s. 121 U.K.]

Section 159
�Application for review of order as to entitlement to licence
�

(3): The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable having regard to the terms applicable in accordance with the licensing scheme or, as the case may be, the circumstances of the case.

[cf. 1988 c. 48 s. 122 U.K.]

Section 160
�Effect of order of Tribunal as to licensing scheme
�

(1): A licensing scheme which has been confirmed or varied by the Copyright Tribunal—
(a) �: under section 155 (reference of terms of proposed scheme); or
(b) �: under section 156 or 157 (reference of existing scheme to Tribunal),

is in force or, as the case may be, remains in operation, so far as it relates to the description of case in respect of which the order was made, so long as the order remains in force.

(2): While the order is in force a person who in a case of a class to which the order applies—
(a) �: pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained; and
(b) �: complies with the other terms applicable to such a licence under the scheme,

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is in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question in accordance with the scheme.

(3) The Tribunal may direct that the order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference was made or, if later, on which the scheme came into operation.

If such a direction is made—

(a) �: any necessary repayments, or further payments, must be made in respect of charges already paid; and
(b) �: the reference in subsection (2)(a) to the charges payable under the scheme is to be construed as a reference to the charges so payable by virtue of the order.

(4) Where the Tribunal has made an order under section 158 (order as to entitlement to licence under licensing scheme) and the order remains in force, the person in whose favour the order is made, if he—

(a) �: pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained; and
(b) �: complies with the other terms specified in the order,

is in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

[cf. 1988 c. 48 s. 123 U.K.]

Section 161
�Licences to which sections 162 to 166 apply
�

Expanded Cross Reference:

Sections 162 , 163 , 164 , 165 , 166

References and applications with respect to licensing by licensing bodies

Sections 162 to 166 (references and applications with respect to licensing by licensing bodies) apply to licences which are granted by a licensing body otherwise than in pursuance of a licensing scheme and which cover works of more than one author, so far as they authorize-<* Note-Exp. X-Ref.: Sections 162 , 163 , 164 , 165 , 166 *>

(a) �: copying the work;
(b) �: where the work is a computer program or sound recording, the rental of copies of the work to the public;
(c) �: performing, playing or showing the work in public;
(d) �: broadcasting the work or including it in a cable programme service;
(e) �: issuing or making available copies of the work to the public;

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(f): making adaptations of the work; or
(g): any other act restricted by the copyright in the work,

and references in those sections to a licence are to be construed accordingly.

[cf. 1988 c. 48 s. 124 U.K.]

Section 162
�Reference to Tribunal of proposed licence
�

(1): A prospective licensee may refer the terms on which a licensing body proposes to grant a licence to the Copyright Tribunal.
(2): The Tribunal shall first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature.
(3): If the Tribunal decides to entertain the reference it shall consider the terms of the proposed licence and make such order, either confirming or varying the terms, as it may determine to be reasonable in the circumstances.
(4): The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

[cf. 1988 c. 48 s. 125 U.K.]

Section 163
�Reference to Tribunal of expiring licence
�

(1): A licensee under a licence which is due to expire, by effluxion of time or as a result of notice given by the licensing body, may apply to the Copyright Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force.
(2): Such an application may not be made until the last 3 months before the licence is due to expire.
(3): A licence in respect of which a reference has been made to the Tribunal remains in operation until proceedings on the reference are concluded.
(4): If the Tribunal finds the application well-founded, it shall make an order declaring that the licensee continues to be entitled to the benefit of the licence on such terms as the Tribunal may determine to be reasonable in the circumstances.
(5): An order of the Tribunal under this section may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

[cf. 1988 c. 48 s. 126 U.K.]

Section 164

Tribunal may award interim payment and restrict application for interlocutory

injunction

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(1): Where an application has been made to the Copyright Tribunal under section 162 or 163 , the Tribunal may of its own motion or on the application of the licensing body order the licensee to make such interim payment of such royalty as the Tribunal thinks just to the licensing body.
(2): Where a reference or an application has been made to the Tribunal under section 162 or 163 , the Tribunal may of its own motion or on the application of the prospective licensee or licensee make an order that pending the final determination of the reference or application or until further order by the Tribunal, the licensing body shall not apply for any interlocutory injunction against the prospective licensee (in the case of a reference under section 162 ) or the licensee (in the case of an application under section 163 ).
(3): Where the Tribunal has made an order under subsection (2) , any application for an interlocutory injunction in any court by the licensing body against the prospective licensee or licensee, as the case may be, shall not be entertained or, if it has been entertained, shall be stayed until the final determination of the reference or application or further order by the Tribunal.
(4): Subject to any earlier termination of the order, an order under subsection (2) ceases to have effect on the final determination of the reference or application, as the case may be.

Section 165
�Application for review of order as to licence
�

(3): The Tribunal shall on an application for review confirm or vary its order as the Tribunal may determine to be reasonable in the circumstances.

[cf. 1988 c. 48 s. 127 U.K.]

Section 166
�Effect of order of Tribunal as to licence
�

(1) Where the Copyright Tribunal has made an order under section 162 or 163 and the order remains in force, the person entitled to the benefit of the order shall if he—

(a) �: pays to the licensing body any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained; and
(b) �: complies with the other terms specified in the order,

be in the same position as regards infringement of copyright as if he had at all material times been the holder of a licence granted by the owner of the copyright in question on the terms specified in the order.

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(2): The benefit of the order may be assigned—
(a) �: in the case of an order under section 162 , if assignment is not prohibited under the terms of the Tribunal’s order; and
(b) �: in the case of an order under section 163 , if assignment was not prohibited under the terms of the original licence.

(3) The Tribunal may direct that an order under section 162 or 163 , or an order under section 165 varying such an order, so far as it varies the amount of charges payable, has effect from a date before that on which it is made, but not earlier than the date on which the reference or application was made or, if later, on which the licence was granted or, as the case may be, was due to expire.

(4): If such a direction is made—
(a) �: any necessary repayments, or further payments, must be made in respect of charges already paid; and
(b) �: the reference in subsection (1)(a) to the charges payable in accordance with the order is to be construed, where the order is varied by a later order, as a reference to the charges so payable by virtue of the later order.

[cf. 1988 c. 48 s. 128 U.K.]

Section 167
�General considerations: unreasonable discrimination
�

Factors to be taken into account in certain classes of case

(2): The Copyright Tribunal shall exercise its powers so as to secure that there is no unreasonable discrimination between licensees, or prospective licensees, under the scheme or licence to which the reference or application relates and licensees under other schemes operated by, or other licences granted by, the same person or any other person.
(3): The mention in subsections (1) and (2) of specific matters to which the Tribunal is to have regard does not affect the general obligation of the Tribunal to have regard to all relevant considerations and in particular, to whether the exercise of its power will result in a conflict with a normal exploitation of the work or will unreasonably prejudice the legitimate interests of the copyright owner.

[cf. 1988 c. 48 ss. 129 & 135 U.K.]

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Section 168
�Implied indemnity in certain schemes and licences
�

Implied indemnity in schemes or licences

(1): This section applies to—
(a) �: schemes for licensing restricted acts in relation to copyright works; and
(b) �: licences granted by licensing bodies,

where the scheme or licence does not specify the works to which it applies with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work.

(2): There is implied—
(a) �: in every scheme to which this section applies an undertaking by the operator of the scheme to indemnify a person granted a licence under the scheme; and
(b) �: in every licence to which this section applies an undertaking by the licensing body to indemnify the licensee,

against any liability incurred by him by reason of his having infringed copyright by making or authorizing an act restricted by the copyright in a work in circumstances within the apparent scope of hislicence.

(3): The circumstances of a case are within the apparent scope of a licence if—
(a) �: it is not apparent from inspection of the licence and the work that it does not fall within the description of works to which the licence applies; and
(b) �: the licence does not expressly provide that it does not extend to copyright to the description infringed.

(6): When an indemnity is implied under subsection (2) , subject to subsection (7) , the amount of damages which a court may award in favour of the owner of the copyright of a work who is not a member of the scheme or, as the case may be, the licensing body for infringement of the copyright must not exceed the amount that owner would receive if he was a member of the scheme or the licensing body.
(7): The court shall not award damages at an amount that will result in a conflict with a normal exploitation of the work or will unreasonably prejudice the legitimate interest of the copyright owner.

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[cf. 1988 c. 48 s. 136 U.K.]

Section 169 The Copyright Tribunal

Remarks:
�Amendments retroactively made — see 22 of 1999 s. 3
�

DIVISION IX THE COPYRIGHT TRIBUNAL

The Tribunal

(1) There is established a tribunal called the Copyright Tribunal.

(2) The Tribunal shall consist of the following members all of whom shall be appointed by the Chief Executive- (Amended 22 of 1999 s. 3)

(a)	one Chairman and appointment as a Di336); and	one Deputy Chairman each of whom strict Judge under section 5 of the District Court Ordinance (Cap	must	be qualified for
(b)	7 ordinary members each of whom is to be appointed in his pers		onal capacity.
		Section 170 Membership of Tribunal
Remarks:

Amendments retroactively made — see 22 of 1999 s. 3

(1): The members of the Copyright Tribunal shall hold and vacate office in accordance with their terms of appointment, subject to the following provisions.
(2): A member of the Tribunal may resign his office by notice in writing to the Chief Executive.
(4): If a member of the Tribunal is by reason of illness, absence or other reasonable cause for the time being unable to perform the duties of his office, either generally or in relation to particular proceedings, the Chief Executive may appoint a person who would be eligible for appointment to that office to discharge his duties for a period not exceeding 6 months at one time or, as the case may be, in relation to those proceedings.

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(5) A person appointed under subsection (4) shall have during the period of his appointment, or in relation to the proceedings in question, the same powers as the person in whose place he is appointed.

(Amended 22 of 1999 s. 3)

[cf. 1988 c. 48 s. 146 U.K.]

Section 171
�Financial provisions
�

(1): There shall be paid to the members of the Copyright Tribunal who are not public officers such remuneration (whether by way of salaries or fees), and such allowances, as the Secretary for Trade and Industry may determine.
(2): The Secretary for Trade and Industry may appoint such number of staff for the Tribunal and at such remuneration as he may determine.
(3): The remuneration and allowances of members of the Tribunal, the remuneration of any staff and such other expenses of the Tribunal as the Secretary for Trade and Industry may determine shall be paid out of the general revenue.

[cf. 1988 c. 48 s. 147 U.K.]

Section 172
�Constitution for purposes of proceedings
�

(1): For the purposes of any proceedings the Copyright Tribunal shall consist of—
(a) �: a chairman, who is either the Chairman or the Deputy Chairman of the Tribunal; and (b)2 or more ordinary members.

(2): If the members of the Tribunal dealing with any matter are not unanimous, the decision shall be taken by majority vote; and if, in such a case, the votes are equal the chairman shall have a further, casting vote.
(5): A person is “suitably qualified” for the purposes of subsection (4)(b) if he is, or is eligible for appointment as, a Deputy Chairman of the Tribunal.

[cf. 1988 c. 48 s. 148 U.K.]

Section 173
�Jurisdiction of Tribunal
�

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Jurisdiction and procedure
�

The Copyright Tribunal has jurisdiction under this Part to hear and determine proceedings under—

(a) �: section 14 (determination of award to employee for use of work outside reasonable contemplation);
(b) �: section 155 , 156 or 157 (reference of licensing scheme);
(c) �: section 158 or 159 (application with respect to entitlement to licence under licensing scheme);
(d) �: section 162 , 163 or 165 (reference or application with respect to licensing by licensing

(e) (f)	body); paragraph 6 of Schedule 2 (contrary rights); paragraph 14(3) of Schedule 2 (acts infringing copyright).	[cf. 1988 c. 48 s. 149 U.K.]
	Section 174 General power to make rules

(1): The Chief Justice may make rules for regulating proceedings before the Copyright Tribunal, as to the fees chargeable in respect of such proceedings, and as to the enforcement of orders made by the Tribunal.
(4): The rules may make provision for regulating or prescribing any matter incidental to or consequential upon any appeal from the Tribunal under section 176 (appeal to the court on point of law).

[cf. 1988 c. 48 s. 150 U.K.]

Section 175 Costs, proof of orders, etc.

(1) The Copyright Tribunal may, in special circumstances, order that the costs of a party to proceedings before it shall be paid by such other party as the Tribunal may direct; and the Tribunal may tax or settle the amount of the costs, or direct in what manner they are to be taxed.

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(2): The Chief Justice may by rules prescribe the special circumstances for the purpose of subsection (1) .
(3): A document purporting to be a copy of an order of the Tribunal and to be certified by the chairman to be a true copy is, in any proceedings, sufficient evidence of the order unless the contrary is proved.

[cf. 1988 c. 48 s. 151 U.K.]

Section 176
�Appeal to court on point of law
�

Remarks:

Amendments retroactively made — see 25 of 1998 s. 2

Appeals

(1): An appeal lies on any point of law arising from a decision of the Copyright Tribunal to the Court of First Instance. (Amended 25 of 1998 s. 2)

[cf. 1988 c. 48 s. 152 U.K.]

Section 177
�Qualification for copyright protection
�

DIVISION X QUALIFICATION FOR COPYRIGHT PROTECTION

(1): Copyright subsists in a work if—
(a) �: the author satisfies the qualification requirements set out in section 178 ; or
(b) �: it is published in Hong Kong or elsewhere; or
(c) �: in the case of a broadcast or cable programme, it is made or sent from Hong Kong or elsewhere.

(2) If the qualification requirements of this Division, or section 182, 184 or 188 (Government copyright, Legislative Council copyright or copyright of certain international organizations) are once satisfied in respect of a work, copyright does not cease to subsist by reason of any subsequent event.

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[cf. 1988 c. 48 s. 153 U.K.]

Section 178
�Qualification by reference to author
�

(1): A work qualifies for copyright protection if the author was at the material time—
(a) �: an individual domiciled or resident or having a right of abode in Hong Kong or elsewhere; or
(b) �: a body incorporated under the law of any country, territory or area.

(2) A work of joint authorship qualifies for copyright protection if at the material time any of the authors satisfies the requirements of subsection (1) ; but where a work qualifies for copyright protection only under this section, only those authors who satisfy those requirements are taken into account for the purposes of—

sections 13 and 14(1) (first ownership of copyright; entitlement of author or author’s employer);

sections 17 and 19 (duration of copyright) and section 11(4) (meaning of “unknown authorship“) so far as it applies for the purposes of sections 17 and 19 ; and

sections 66 and 75 (acts permitted on assumptions as to expiry of copyright, etc.).

[cf. 1988 c. 48 s. 154 U.K.]

Section 179
�Ships, aircraft and hovercraft registered in Hong Kong
�

This Part applies to things done on a ship, aircraft or hovercraft registered under the law of Hong Kong as it applies to things done in Hong Kong.

[cf. 1988 c. 48-s. 162 U.K.]

Section 180
�Denial of copyright protection to people of countries, etc. not giving adequate
�protection to Hong Kong works
�

Remarks:

Amendments retroactively made — see 22 of 1999 s. 3

(1): Subject to subsection (4) , if it appears to the Chief Executive in Council that Hong Kong works or one or more classes of those works are not adequately protected in a country, territory or area as a result of any prejudicial treatment given to those works by that country, territory or area, the Chief Executive in Council may be regulation in accordance with this section restrict the rights conferred by this Part in relation to works of authors connected with that country, territory or area.
(2): The Chief Executive in Council shall designate in the regulation the country, territory or area concerned and provide that, for the purposes specified in the regulation, a work first published

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in that country, territory or area after a date specified in the regulation does not qualify for copyright protection by virtue of such publication if at the time of that publication the author is—

(a) �: an individual domiciled or resident or having a right of abode in that country, territory or area (and not at the same time domiciled or resident or having a right of abode in Hong Kong); or
(b) �: a body incorporated under the law of that country, territory or area, and the regulation may make such provision for all the purposes of this Part or for such purposes as are specified in the regulation, and either generally or in relation to such class of cases as are specified in the regulation, having regard to the nature and extent of that prejudicial treatment referred to in subsection (1) .

(4): The Chief Executive in Council shall not exercise his power under this section in relation to a country, territory or area which is a party to a bilateral or multilateral copyright or related right convention to which Hong Kong is also a party or the application of which has been extended to Hong Kong.

(Amended 22 of 1999 s. 3)

[cf. 1988 c. 48 s. 160 U.K.]

Section 181
�Meaning of first publication and material time
�

(1): For the purposes of section 180 , publication in one country, territory or area is still regarded as first publication if simultaneous publication occurs elsewhere; and for this purpose publication elsewhere within the previous 30 days is treated as simultaneous.

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[cf. 1988 c. 48 ss. 154 & 155 U.K.]

Section 182
�Government copyright
�

DIVISION XI MISCELLANEOUS AND GENERAL

Government and Legislative Council copyright

(1): Where a work is made by an officer of the Government in the course of his duties—
(a) �: the work qualifies for copyright protection notwithstanding section 177 (ordinary requirement as to qualification for copyright protection); and
(b) �: the Government is the first owner of any copyright in the work.

(4): In the case of a work of joint authorship where one or more but not all of the authors are persons falling within subsection (1) , this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.
(5): Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Government copyright as to other copyright.
(6): This section does not apply to a work if, or to the extent that, Legislative Council copyright subsists in the work (see sections 184 and 185 ).

[cf. 1988 c. 48 s. 163 U.K.]

Section 183
�Copyright in Ordinances
�

(1) The Government is entitled to copyright in every Ordinance.

(2): The copyright subsists from the date of publication in the Gazette until the end of the period of 50 years from the end of the calendar year of publication.
(3): References in this Part to Government copyright (except in section 182 ) include copyright under this section; and, except as mentioned above, the provisions of this Part apply in relation to copyright under this section as to other Government copyright.

(4) No other copyright, or right in the nature of copyright, subsists in an Ordinance.

[cf. 1988 c. 48 s. 164 U.K.]

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Section 184
�Legislative Council copyright
�

(1): Where a work is made by or under the direction or control of the Legislative Council—
(a) �: the work qualifies for copyright protection notwithstanding section 177 (ordinary requirement as to qualification for copyright protection); and
(b) �: the Legislative Council is the first owner of any copyright in the work.

(2): Copyright in such a work is referred to in this Part as “Legislative Council copyright”, notwithstanding that it may be, or have been, assigned to another person.
(3): Legislative Council copyright in a literary, dramatic, musical or artistic work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made.
(5): In the case of a work of joint authorship where one or more but not all of the authors are acting on behalf of, or under the direction or control of the Legislative Council, this section applies only in relation to those authors and the copyright subsisting by virtue of their contribution to the work.
(6): Except as mentioned above, and subject to any express exclusion elsewhere in this Part, the provisions of this Part apply in relation to Legislative Council copyright as to other copyright.

[cf. 1988 c. 48 s. 165 U.K.]

Section 185
�Copyright in bills
�

Remarks:

Amendments retroactively made — see 22 of 1999 s. 3

(3): Copyright under this section subsists from the date of the first publication of a bill in the Gazette until—

(a) �in the case of a bill which was published in the Gazette before 1 July 1997—

(i) �the bill received assent; or

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(ii) �if the bill did not receive assent, the end of the period of 50 years from the end of the calendar year of the first publication; and

(b) in the case of a bill which is published in the Gazette on or after 1 July 1997—

(i) �: the bill is signed by the Chief Executive; or
(ii) �: if the bill is not signed by the Chief Executive, the end of the period of 50 years from the end of the calendar year of the first publication. (Replaced 22 of 1999 s. 3)

(4): References in this Part to Government copyright (except in section 182 ) include copyright under subsection (1) ; and, except as mentioned above, the provisions of this Part apply in relation to copyright under subsection (1) as to other Government copyright.
(5): References in this Part to Legislative Council copyright (except in section 184 ) include copyright under subsection (2) ; and, except as mentioned above, the provisions of this Part apply in relation to copyright under subsection (2) as to other Legislative Council copyright.
(6): No other copyright, or right in the nature of copyright, subsists in a bill after copyright has once subsisted under this section; but without prejudice to the subsequent operation of this section in relation to a bill which, not having passed in one session, is reintroduced in a subsequent session.
(7): In this section “member’s bill” means a bill, other than a Government measure, which is to be presented by a Member of the Legislative Council.

[cf. 1988 c. 48 s. 166 U.K.]

Section 186 Legislative Council: supplementary provisions with respect to copyright

(1): For the purposes of holding, dealing with and enforcing copyright, and in connection with all legal proceedings relating to copyright, the Legislative Council is to be treated as having the legal capacities of a body corporate, which is not affected by a dissolution of the Legislative Council.
(2): The functions of the Legislative Council as owner of copyright are exercisable by the President on behalf of the Legislative Council; and if so authorized by the President, or in case of a vacancy in the office of President, those functions may be discharged by the Secretary General of the Legislative Council Secretariat.
(3): For this purpose a person who on the dissolution of the Legislative Council was President of the Legislative Council may continue to act until the corresponding appointment is made in the next session of the Legislative Council.

[cf. 1988 c. 48 s. 167 U.K.]

Section 187
�Groundless threat of proceedings in relation to parallel import
�

Other miscellaneous provisions

(1) Where a person threatens another person with proceedings for infringement of copyright under sections 30 and 31 in respect of a copy of a work which is alleged to be an infringing copy by

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virtue only of section 35(3) , the person aggrieved by the threats may apply to the court for any one or more of the following reliefs—

(a)	a declaration to the effect that the threats are unjustifiable;
(b)	an injunction against the continuance of the threats;
(c)	damages in respect of any loss which he had sustained by the threats.

(2): If the person proves that the threats were made and that he is a person aggrieved by them, he is entitled to the relief claimed unless the defendant shows that the acts in respect of which proceedings were threatened did constitute, or if done would have constituted, an infringement of copyright under that section.
(3): The mere notification of the existence of a copyright does not constitute a threat of proceedings for the purposes of this section.
(4): Nothing in this section makes a barrister or solicitor liable to an action under this section in respect of an act done by him in his professional capacity on behalf of his client.
(5): The defendant in an action under this section may apply, by way of counterclaim, for relief to which he would be entitled in a separate action in respect of an infringement by the plaintiff of the copyright to which the threats relate and, in any such case, the provisions of this Ordinance with respect to an action for infringement of copyright are, mutatis mutandis, applicable in relation to the action.

[cf. 1988 c. 48 s. 253 U.K.]

Section 188 Copyright vesting in international organizations

Remarks:

Amendments retroactively made — see 22 of 1999 s. 3

(1): Where an original literary, dramatic, musical or artistic work—
(a) �: is made by an officer or employee of, or is published by, any international organization; and
(b) �: does not qualify for copyright protection under section 178 (qualification by reference to author),

copyright nevertheless subsists in the work by virtue of this section and the organization is the first owner of that copyright.

(2): Copyright of which an international organization is first owner by virtue of this section continues to subsist until the end of the period of 50 years from the end of the calendar year in which the work was made or such longer period as may be specified by the Chief Executive by regulation under subsection (4) . (Amended 22 of 1999 s. 3)
(3): An international organization is deemed to have, and to have had at all material times, the legal capacities of a body corporate for the purpose of holding, dealing with and enforcing copyright, and in connection with all legal proceedings relating to copyright.

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(4) The Chief Executive may, for the purpose of complying with the international obligations applicable to Hong Kong make regulation specifying a period longer than 50 years for the purposes of this section in relation to any international organization. (Amended 22 of 1999 s. 3)

[cf. 1988 c. 48 s. 168 U.K.]

Section 189
�Folklore, etc.: anonymous unpublished works
�

(1): Where in the case of an unpublished literary, dramatic, musical or artistic work of unknown authorship there is evidence that the author (or, in the case of a joint work, any of the authors) was a qualifying individual by connection with a country, territory or area outside Hong Kong, it is presumed, until the contrary is proved, that he was such a qualifying individual and that copyright accordingly subsists in the work, subject to the provisions of this Part.
(2): If under the law of that country, territory or area a body is appointed to protect and enforce copyright in such works, the Secretary for Trade and Industry may by regulation designate that body for the purposes of this section.
(3): A body so designated is recognized in Hong Kong as having authority to do in place of the copyright owner anything, other than assign copyright, which it is empowered to do under the law of that country; and it may, in particular, bring proceedings in its own name.
(4): In subsection (1) a “qualifying individual” means an individual who at the material time (within the meaning of section 178 ) was a person whose works qualified under that section for copyright protection.
(5): This section does not apply if there has been an assignment of copyright in the work by the author of which notice has been given to the designated body; and nothing in this section affects the validity of an assignment of copyright made, or licence granted, by the author or a person lawfully claiming under him.

[cf. 1988 c. 48 s. 169 U.K.]

Section 190
�Protection of Commissioner and authorized officers
�

(1): The Commissioner and authorized officers are not liable for any loss or damage suffered by any person as a result of any action taken or omitted to be taken in good faith in connection with the carrying out of any of their duties under this Part.
(2): The protection conferred by subsection (1) on the Commissioner and authorized officers in respect of any action taken or omitted to be taken in good faith in connection with the carrying out of those duties shall not affect in any manner any liability of the Government for that action taken or omitted to be taken.

Section 191
�Transitional provisions and savings
�

Transitional provisions and savings

Legislative Texts

Schedule 2 contains transitional provisions and savings relating to works made, and acts or events occurring, before the commencement of this Part, and otherwise with respect to the operation of the provisions of this Part.

[cf. 1988 c. 48 s. 170 U.K.]

Section 192
�Rights and privileges under other enactments or the common law
�

(1): Nothing in this Part affects—
(a) �: any right or privilege of any person under any enactment (except where the enactment is expressly repealed, amended or modified by this Ordinance);
(b) �: any right or privilege of the Government subsisting otherwise than under an enactment;
(c) �: any right or privilege of the Legislative Council;
(d) �: the right of the Government or any person deriving title from the Government to sell, use or otherwise deal with the articles forfeited under the law of Hong Kong;
(e) �: the operation of any rule of equity relating to breaches of trust or confidence.

(2): Subject to those savings, no copyright or right in the nature of copyright subsists otherwise than by virtue of this Part or some other enactment in that behalf.
(3): Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.
(4): Nothing in this Part affects any right of action or other remedy, whether civil or criminal, available otherwise than under this Part in respect of acts infringing any of the rights conferred by Division IV (moral rights).
(5): The savings in subsection (1) have effect subject to sections 183(4) and 185(6) (copyright in Ordinances and bills: exclusion of other rights in the nature of copyright).

[cf. 1988 c. 48 s. 171 U.K.]

Section 193
�General provisions as to construction
�

Interpretation

(1): This Part restates and amends the law of copyright, that is, the provisions of the Copyright Act 1956 (1956 c. 74 U.K.) as amended and extended to Hong Kong and the provisions of the Copyright Ordinance (Cap 39), as amended.
(2): A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression.
(3): Decisions under the previous law may be referred to for the purpose of establishing whether a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part.

[cf. 1988 c. 48 s. 172 U.K.]

Legislative Texts

Section 194
�Construction of references to copyright owner
�

(1): Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of copyright in a work, the copyright owner for any purpose of this Part is the person who is entitled to the aspect of copyright relevant for that purpose.
(2): Where copyright (or any aspect of copyright) is owned by more than one person jointly, references in this Part to the copyright owner are to all the owners, so that, in particular, any requirement of the licence of the copyright owner requires the licence of all of them.

[cf. 1988 c. 48 s. 173 U.K.]

Section 195
�Meaning of “educational establishment” and related expressions
�

(1): The expression “educational establishment” means an educational establishment specified in Schedule 1 .
(2): In relation to an educational establishment the expressions “teacher” and “pupil” in this Part include, respectively, any person who gives and any person who receives instruction.
(3): References in this Part to anything being done “on behalf of” an educational establishment are to its being done for the purposes of that establishment by any person.
(4): The Secretary for Education and Manpower may, by notice in the Gazette, amend Schedule 1 .

[cf. 1988 c. 48 s. 174 U.K.]

Section 196
�Meaning of “publication” and “commercial publication”
�

(1): In this Part “publication”, in relation to a work, means the issue or making available of copies of the work to the public; and related expressions are construed accordingly.
(2): In this Part “commercial publication”, in relation to a literary, dramatic, musical or artistic work means issuing or making available copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, and related expressions are construed accordingly.
(3): In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building is treated as equivalent to publication of the work.

Legislative Texts

(i) �: the exhibition of the work;
(ii) �: the issue or making available to the public of copies of a graphic work representing, or of photographs of, a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship;

(iii) �the issue or making available to the public of copies of a film including the work; or

(iv) �the broadcasting of the work or its inclusion in a cable programme service;

(i) �: the work being played or shown in public; or
(ii) �: the broadcasting of the work or its inclusion in a cable programme service.

(5) References in this Part to publication or commercial publication do not include publication which is merely colourable and not intended to satisfy the reasonable requirements of the public.

(6) No account is taken for the purposes of this section of any unauthorized act. [cf. 1988 c. 48 s. 175 U.K.]

Section 197
�Requirement of signature: application in relation to body corporate
�

(1) The requirement in the following provisions that an instrument be signed by or on behalf of a person is also satisfied in the case of a body corporate by the affixing of its seal—

section 90(3)(b) (assertion by licensor of right to identification of author in case of public exhibition of copy made in pursuance of the licence);

section 101(3) (assignment of copyright);

section 102(1) (assignment of future copyright);

section 103(1) (grant of exclusive licence).

(2) The requirement in the following provisions that an instrument be signed by a person is satisfied in the case of a body corporate by signature on behalf of the body or by the affixing of its seal—

section 90(2)(b) (assertion by instrument in writing of right to have author identified);

section 98(2) (waiver of moral rights).

[cf. 1988 c. 48 s. 176 U.K.]

Section 198
�Minor definitions
�

Remarks:

Amendments retroactively made — see 22 of 1999 s. 3

Legislative Texts

In this Part—
�“article”, in the context of an article in a periodical, includes an item of any description;
�“article in transit” means an article which—
�

(a) �: is brought into Hong Kong solely for the purpose of taking it out of Hong Kong; and
(b) �: remains at all times in or on the vessel or aircraft in or on which it is brought into Hong Kong;

“authorized officer” means any public officer authorized in writing by the Commissioner to exercise any of the powers and perform any of the duties conferred or imposed on an authorized officer under this Ordinance;

“business” includes a trade or profession;

“collective work” means—

(a) �a work of joint authorship; or

(b) �a work in which there are distinct contributions by different authors or in which works or parts of works of different authors are incorporated; “Commissioner” means the Commissioner of Customs and Excise and any Deputy or Assistant Commissioner of Customs and Excise; (Replaced 22 of 1999 s. 3) “computer-generated”, in relation to a work, means that the work is generated by computer in circumstances such that there is no human author of the work;

“electronic” means actuated by electric, magnetic, electro-magnetic, electro-chemical or electro-mechanical energy, and “in electronic form” means in a form usable only by electronic means;

“employed”, “employee”, “employer” and “employment” refer to employment under a contract of service or of apprenticeship; “export” means to take, or cause to be taken, out of Hong Kong any article; “facsimile copy” includes a copy which is reduced or enlarged in scale; “import” means to bring, or cause to be brought, into Hong Kong any article; “international organization” means an organization the members of which include one or more countries, territories or areas; “judicial proceedings” includes proceedings before any court, tribunal or person having authority to decide any matter affecting a person’s legal rights or liabilities; “producer”, in relation to a sound recording or a film, means the person by whom the arrangements necessary for the making of the sound recording or film are undertaken; “rental right” means the right of a copyright owner to authorize or prohibit the rental of copies of a computer program or sound recording (see section 25 ); “reprographic copy” refers to a copy made by means of a reprographic process; “reprographic process” means a process—

(a) �for making facsimile copies; or

Legislative Texts

(b) �involving the use of an appliance for making multiple copies, and includes, in relation to a work held in electronic form, any copying by electronic means, but does not include the making of a sound recording or film;

“sufficient acknowledgement” means an acknowledgement identifying the work in question by its title or other description, and identifying the author unless—

(a) �: in the case of a published work, it is published anonymously;
(b) �: in the case of an unpublished work, it is not possible for a person to ascertain the identity of the author by reasonable inquiry;

“sufficient disclaimer”, in relation to an act capable of infringing the right conferred by section 92 (right to object to derogatory treatment of work), means a clear and reasonably prominent indication—

(a) �: given at the time of the act; and
(b) �: if the author or director is then identified, appearing along with the identification,

that the work has been subjected to treatment to which the author or director has not consented;

“telecommunications system” means a system for transmitting visual images, sounds or other information by electronic means;

“typeface” includes an ornamental motif used in printing;

“unauthorized”, as regards anything done in relation to a work, means done otherwise than—

(a) �: by or with the licence of the copyright owner;
(b) �: if copyright does not subsist in the work, by or with the licence of the author or, in a case where section 14(1) would have applied, the author’s employer or, in either case, persons lawfully claiming under him; or
(c) �: in pursuance of section 57 (copying, etc. of certain material by the Government);

“wireless telegraphy” means the sending of electro-magnetic energy over paths which are not provided by any material substance constructed or arranged for that purpose;

“writing” includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded, and “written” is construed accordingly.

[cf. 1988 c. 48 s. 178 U.K.]

Section 199
�Index of defined expressions
�

The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used only in the same section)—

acts restricted by copyright section 22(1)
�adaptation section 29(3)
�archivist (in sections 46 to 53) section 46(5)
�article (in a periodical) section 198
�article in transit section 198
�artistic work section 5
�

Legislative Texts

author sections 11 and 12(4) authorized officer section 198 broadcast (and related expressions) section 8 building section 5 business section 198 cable programme, cable programme service (and section 9 related expressions) collective work section 198 commencement (in Schedule 2) paragraph 1(2) of that Schedule commercial publication section 196 Commissioner section 198 computer-generated section 198 copy and copying section 23 copyright (generally) section 2 copyright (in Schedule 2) paragraph 2(2) of that Schedule copyright owner sections 112(2) and 194 Copyright Tribunal section 169 copyright work section 2(2) detention order section 135 dramatic work section 4(1) educational establishment section 195(1) electronic and electronic form section 198 employed, employee, employer and employment section 198 exclusive licence section 103(1) export section 198 facsimile copy section 198 film section 7 future copyright section 102(2) Government copyright sections 182(2) and 183(3) graphic work section 5 import section 198 infringing copy section 35 international organization section 198 issue of copies to the public section 24 joint authorship (work of) section 12 judicial proceedings section 198 Legislative Council copyright sections 184(2) and 185(5) librarian (in sections 45 to 52) section 46(5) licence (in sections 158 to 162) section 161 licence of copyright owner sections 101(4), 102(3) and 194 licensing body (in Division VIII) section 145(2) licensing scheme (generally) section 145(1) licensing scheme (in sections 151 to 156) section 154

literary work								section 4(1)
made	(in	relation	to	a	literary,	dramatic	or	section 4(2)
musical work)

make available copies to the public section 26 musical work section 4(1) on behalf of (in relation to an educational section 195(3) establishment)

Legislative Texts

Section 200 Rights conferred on performers and persons having fixation rights
performance		section 27(2)
photograph		section 5
prescribed conditions (in sections 46 to 52)		section 46(2)(a)
producer (in relation to a sound recording	or	section 198
film)
programme (in the context of broadcasting)		section 8(3)
prospective owner (of copyright)		section 102(2)
publication and related expressions		section 196
published edition (in the context of copyright in		section 10
the typographical arrangement)
pupil		section 195(2)
rental right		section 198
reprographic copies and reprographic copying		section 198
reprographic process		section 198
right holder		section 135
sculpture		section 5
signed		section 197
sound recording		section 6
specified library or archive (in sections 46 to 52)		section 46(2)(b)
sufficient acknowledgement		section 198
sufficient disclaimer		section 198
teacher		section 195(2)
telecommunications system		section 198
typeface		section 198
unauthorized (as regards things done in relation		section 198
to a work)
unknown (in relation to the author of a work)		section 11(5)
unknown authorship (work of)		section 11(4)
wireless telegraphy		section 198
work (in Schedule 2)		paragraph 2(1) of that Schedule
work of more than one author (in Division VIII)		section 145(3)
writing and written		section 198
		[cf. 1988 c. 48 s. 179 U.K.]

PART III
�RIGHTS IN PERFORMANCES
�

DIVISION I THE RIGHTS, INFRINGEMENT OF THE RIGHTS AND REMEDIES FOR INFRINGEMENT

Introductory

(1) This Part confers rights—

Legislative Texts

(a) �: on a performer, by requiring his consent to the exploitation of his performances and thus enabling him to prohibit such exploitation without his consent (see sections 201 to 207); and
(b) �: on a person having fixation rights in relation to a performance, in relation to fixations made without his consent or that of the performer (see sections 208 to 211).
(2): In this Part—
�“fixation”, in relation to a performance, means a film or sound recording—
�
(a) �: made directly from the unfixed performance;
(b) �: made from a broadcast of, or cable programme including, the performance; or
(c): made, directly or indirectly, from another fixation of the performance;
�“performance” means—
�
(a) �: a dramatic performance (which includes dance and mime);
�
(b) �: a musical performance;
�
(c) �: a reading or recitation of a literary work;
�
(d): a performance of a variety act or any similar presentation,
�which is, or so far as it is, an unfixed performance given by one or more individuals;
�“performer” means an actor, singer, musician, dancer or any other person who acts, sings,
�

delivers, declaims, plays in, interprets, or otherwise performs a performance.

(3): The rights conferred by this Part are independent of—
(a) �: any copyright in, or moral rights relating to, any work performed or any film or sound recording of, or broadcast or cable programme including, the performance; and
(b) �: any other right or obligation arising otherwise than under this Part. [cf. 1988 c. 48 s. 180 U.K.]

Section 201
�Qualifying performances
�

Performers’ rights

A performance is a qualifying performance for the purposes of the provisions of this Part relating to performers’ rights if it is given in Hong Kong or elsewhere by an individual domiciled or resident or having a right of abode in Hong Kong or elsewhere.

[cf. 1988 c. 48 s. 181 U.K.]

Section 202
�Consent required for fixation, etc. of unfixed performance
�

(1): A performer’s rights are infringed by a person who, without the performer’s consent—
(a) �: makes a fixation of the whole or any substantial part of a qualifying performance directly from the unfixed performance;

Legislative Texts

(b) �: broadcasts live, or includes live in a cable programme service, or makes available to the public live, the whole or any substantial part of a qualifying performance; or
(c) �: makes a fixation of the whole or any substantial part of a qualifying performance directly from a broadcast of, or cable programme including, the unfixed performance or directly from the unfixed performance which is made available to the public live.

(2): A performer’s rights are not infringed by the making of any such fixation by a person for his private and domestic use.
(3): In an action for infringement of a performer’s rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.
(4): In this section “makes available to the public live”, in relation to a performance, means the making available of the unfixed performance, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the performance from a place individually chosen by them.

[cf. 1988 c. 48 s. 182 U.K.]

Section 203
�Consent required for copying of fixation
�

(3): Making of a copy of a fixation means reproducing the fixation in any material form. This includes storing the fixation in any medium by electronic means.
(4): The right of a performer under this section to authorize or prohibit the making of such copies is referred to in this Part as “the right of reproduction”.

[cf. 1988 c. 48 s. 182A U.K.]

Section 204
�Consent required for issue of copies to public
�

(1): A performer’s rights are infringed by a person who, without the performer’s consent, issues to the public copies of a fixation of the whole or any substantial part of a qualifying performance.

Legislative Texts

(4): References in this Part to the issue of copies of a fixation of a performance include the issue of the original fixation of the unfixed performance.
(5): The right of a performer under this section to authorize or prohibit the issue of copies to the public is referred to in this Part as “the right of distribution”.

[cf. 1988 c. 48 s. 182B U.K.]

Section 205
�Consent required for making available of copies to public
�

(1): A performer’s rights are infringed by a person who, without the performer’s consent, makes available to the public copies of a fixation of the whole or any substantial part of a qualifying performance.
(2): References in this Part to the making available to the public of copies of a fixation of a performance are to the making available of copies of the fixation, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the fixation from a place and at a time individually chosen by them (such as the making available of copies of works through the service commonly known as the INTERNET).
(3): References in this Part to the making available of copies of a fixation of a performance include the making available of the original fixation of the unfixed performance.
(4): The mere provision of physical facilities for enabling the making available to the public of copies of a fixation of a performance does not of itself constitute an act of making available to the public of copies of the fixations.
(5): The right of a performer under this section to authorize or prohibit the making available of copies of a fixation to the public is referred to in this Part as “the right of making available to the public”.

Section 206
�Infringement of performer’s rights by use of fixation made without consent
�

(1): A performer’s rights are infringed by a person who, without the performer’s consent—
(a) �: shows or plays in public the whole or any substantial part of a qualifying performance; or
(b) �: broadcasts or includes in a cable programme service the whole or any substantial part of a qualifying performance,

by means of a fixation which was, and which that person knows or has reason to believe was, made without the performer’s consent.

(2) A performer’s rights are also infringed by a person who, without the performer’s consent, shows or plays the whole or any substantial part of a qualifying performance in the course of making available to the public a fixation which was, and which that person knows or has reason to believe was, made without the performer’s consent.

[cf. 1988 c. 48 s. 183 U.K.]

Legislative Texts

Section 207
�Infringement of performer’s rights by importing, exporting, possessing or
�dealing with infringing fixation
�

(1): A performer’s rights are infringed by a person who, without the performer’s consent—
(a) �: imports into Hong Kong or exports from Hong Kong, otherwise than for his private and domestic use; or
(b) �: for the purpose of trade or business possesses, makes available to the public, sells or lets for hire, offers or exposes for sale or hire, or distributes,

a fixation of a qualifying performance which is, and which that person knows or has reason to believe is, an infringing fixation.

(2): Where in an action for infringement of a performer’s rights brought by virtue of this section a defendant shows that the infringing fixation was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable payment in respect of the act complained of.
(3): In subsection (2) “innocently acquired” means that the person acquiring the fixation did not know and had no reason to believe that it was an infringing fixation.

[cf. 1988 c. 48 s. 184 U.K.]

Section 208
�Exclusive fixation contracts and persons having fixation rights
�

Rights of person having fixation rights

(1): In this Part an “exclusive fixation contract” means a contract between a performer and another person under which that person is entitled to the exclusion of all other persons (including the performer) to make fixations of one or more of the performer’s performances with a view to their commercial exploitation.

and who is a qualifying person.

(3) If a performance is subject to an exclusive fixation contract but the person mentioned in subsection (2) is not a qualifying person, references in this Part to a “person having fixation rights” in relation to the performance are to any person—

(a) �: who is licensed by such a person to make fixations of the performance with a view to their commercial exploitation; or
(b) �: to whom the benefit of such a licence has been assigned,

and who is a qualifying person.

Legislative Texts

(4) In this section “with a view to commercial exploitation” means with a view to the fixations being sold or let for hire, or shown or played in public, or issued or made available to the public.

[cf. 1988 c. 48 s. 185 U.K.]

Section 209
�Consent required for fixation of performance subject to exclusive contract
�

(1): A person infringes the rights of a person having fixation rights in relation to a performance who, without the latter’s consent or that of the performer, makes a fixation of the whole or any substantial part of the performance, otherwise than for his private and domestic use.
(2): In an action for infringement of those rights brought by virtue of this section damages shall not be awarded against a defendant who shows that at the time of the infringement he believed on reasonable grounds that consent had been given.

[cf. 1988 c. 48 s. 186 U.K.]

Section 210 Infringement of fixation rights by use of fixation made without consent

(1) A person infringes the rights of a person having fixation rights in relation to a performance who, without the latter’s consent or, in the case of a qualifying performance, that of the performer—

(a) �: shows or plays in public the whole or any substantial part of the performance; or
(b) �: broadcasts or includes in a cable programme service the whole or any substantial part of the performance,

by means of a fixation which was, and which that person knows or has reason to believe was, made without the appropriate consent.

(2) A person infringes the rights of a person having fixation rights in relation to a performance who, without the latter’s consent or, in the case of a qualifying performance, that of the performer, shows or plays the whole or any substantial part of the performance in the course of making available to the public a fixation which was, and which that person knows or has reason to believe was, made without the appropriate consent.

(3): The reference in subsection (1) or (2) to “the appropriate consent” is to the consent of—
(a) �: the performer; or
(b) �: the person who at the time the consent was given had fixation rights in relation to the performance (or, if there was more than one such person, of all of them).

[cf. 1988 c. 48 s. 187 U.K.]

Section 211
�Infringement of fixation rights by importing, exporting, possessing or dealing
�with infringing fixation
�

Legislative Texts

(a) �: imports into Hong Kong or exports from Hong Kong, otherwise than for his private and domestic use; or
(b) �: for the purpose of trade or business possesses, makes available to the public, sells or lets for hire, offers or exposes for sale or hire, or distributes,

a fixation of the performance which is, and which that person knows or has reason to believe is, an infringing fixation.

(2): Where in an action for infringement of those rights brought by virtue of this section a defendant shows that the infringing fixation was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable payment in respect of the act complained of.
(3): In subsection (2) “innocently acquired” means that the person acquiring the fixation did not know and had no reason to believe that it was an infringing fixation.

[cf. 1988 c. 48 s. 188 U.K.]

Section 212
�Acts permitted notwithstanding rights conferred by this Division
�

Exceptions to rights conferred

The provisions of Division II specify acts which may be done notwithstanding the rights conferred by this Part, being acts which correspond broadly to certain of those specified in Division III of Part II (acts permitted notwithstanding copyright).

[cf. 1988 c. 48 s. 189 U.K.]

Section 213
�Power of Tribunal to give consent on behalf of owner of right of reproduction in
�certain cases
�

(1): The Copyright Tribunal may, on the application of a person wishing to make a copy of a fixation of a performance, give consent in a case where the identity or whereabouts of the person entitled to the right of reproduction cannot be ascertained by reasonable inquiry.
(2): Consent given by the Tribunal has effect as consent of the person entitled to the right of reproduction for the purposes of the provision of this Part relating to performers’ rights and may be given subject to any conditions specified in the Tribunal’s order.

Legislative Texts

(b) �whether the making of the further fixation is consistent with the obligations of the parties to the arrangements under which, or is otherwise consistent with the purposes for which, the original fixation was made:

(5) Where the Tribunal gives consent under this section it shall, in default of agreement between the applicant and the person entitled to the right of reproduction, make such order as it thinks fit as to the payment to be made to that person in consideration of consent being given.

[cf. 1988 c. 48 s. 190 U.K.]

Section 214
�Duration of rights
�

Duration of rights

(3): For the purposes of subsection (2) a fixation is “released” when it is first published, played or shown in public, broadcast, included in a cable programme service or made available to the public; but in determining whether a fixation has been released no account shall be taken of any unauthorized act.

[cf. 1988 c. 48 s. 191 U.K.]

Section 215
�Performers’ economic rights
�

Performers’ economic rights

(1) The following rights conferred by this Part on a performer—

the right of reproduction (section 203);

the right of distribution (section 204);

the right of making available to the public (section 205), are property rights (“a performer’s economic rights“).

(2): References in this Part to the consent of the performer are to be construed in relation to a performer’s economic rights as references to the consent of the rights owner.
(3): Where different persons are (whether in consequence of a partial assignment or otherwise) entitled to different aspects of a performer’s economic rights in relation to a performance, the rights owner for any purpose of this Part is the person who is entitled to the aspect of those rights relevant for that purpose.

Legislative Texts

(4) Where a performer’s economic rights (or any aspect of them) is owned by more than one person jointly, references in this Part to the rights owner are to all the owners, so that, in particular, any requirement of the licence of the rights owner requires the licence of all of them.

[cf. 1988 c. 48 s. 191A U.K.]

Section 216
�Assignment and licences
�

(1): A performer’s economic rights are transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property.
(3): An assignment of a performer’s economic rights is not effective unless it is in writing signed by or on behalf of the assignor.
(4): A licence granted by the owner of a performer’s economic rights is binding on every successor in title to his interest in the rights, except a purchaser in good faith for valuable consideration and without notice (actual or constructive) of the licence or a person deriving title from such a purchaser; and references in this Part to doing anything with, or without, the licence of the rights owner are to be construed accordingly.

[cf. 1988 c. 48 s. 191B U.K.]

Section 217
�Prospective ownership of a performer’s economic rights
�

(1): This section applies where by an agreement made in relation to a future fixation of a performance, and signed by or on behalf of the performer, the performer purports to assign his performer’s economic rights (wholly or partially) to another person.
(2): If on the rights coming into existence the assignee or another person claiming under him would be entitled as against all other persons to require the rights to be vested in him, they shall vest in the assignee or his successor in title by virtue of this subsection.
(4): In subsection (3) “prospective owner”, in relation to a performer’s economic rights, means a person who is prospectively entitled to those rights, by virtue of such an agreement as is mentioned in subsection(1).

[cf. 1988 c. 48 s. 191C U.K.]

Legislative Texts

Section 218
�Exclusive licences
�

(1): In this Part an “exclusive licence” means a licence in writing signed by or on behalf of the owner of a performer’s economic rights authorizing the licensee to the exclusion of all other persons, including the person granting the licence, to do anything requiring the consent of the rights owner.
(2): The licensee under an exclusive licence has the same rights against a successor in title who is bound by the licence as he has against the person granting the licence.

[cf. 1988 c. 48 s. 191D U.K.]

Section 219 Performer’s economic right to pass under will with unpublished original fixation

Where under a bequest (whether general or specific) a person is entitled beneficially or otherwise to any material thing containing an original fixation of a performance which was not published before the death of the testator, the bequest is, unless a contrary intention is indicated in the testator’s will or a codicil to it, to be construed as including any performer’s rights in relation to the fixation to which the testator was entitled immediately before his death.

[cf. 1988 c. 48 s. 191E U.K.]

Section 220
�Infringement actionable by rights owner
�

(1): An infringement of a performer’s economic rights or of any right conferred by this Part on a person having fixation rights is actionable by the rights owner.
(2): In an action for infringement of a performer’s economic rights or of any right conferred by this Part on a person having fixation rights 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.

(3) This section has effect subject to the following provisions of this Part.

[cf. 1988 c. 48 s. 191I U.K.]

Section 221
�Provisions as to damages in infringement action
�

(1): Where in an action for infringement of a performer’s economic rights or of any right conferred by this Part on a person having fixation rights it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that the rights subsisted in the fixation to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.
(2): The court may in an action for infringement of a performer’s economic rights or of any right conferred by this Part on a person having fixation rights having regard to all the circumstances, and in particular to—

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(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.

[cf. 1988 c. 48 s. 191J U.K.]

Section 222
�Right and remedies for exclusive licensee
�

(1): An exclusive licensee has, except against the owner of a performer’s economic rights, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.
(2): His rights and remedies are concurrent with those of the rights owner; and references in the relevant provisions of this Part to the rights owner are to be construed accordingly.
(3): In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the rights owner.

[cf. 1988 c. 48 s. 191L U.K.]

Section 223
�Exercise of concurrent rights
�

(1): Where an action for infringement of a performer’s economic rights brought by the rights owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the rights owner or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as plaintiff or added as a defendant.
(2): A rights owner or exclusive licensee who is added as a defendant in pursuance of subsection (1) is not liable for any costs in the action unless he takes part in the proceedings.
(3): The above provisions do not affect the granting of interlocutory relief on an application by the rights owner or exclusive licensee alone.

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(c) �the court shall if an account of profits is directed apportion the profits between them as the court considers just, subject to any agreement between them,

and these provisions apply whether or not the rights owner and the exclusive licensee are both parties to the action.

(5) The owner of a performer’s economic rights shall notify any exclusive licensee having concurrent rights before applying for an order under section 228(order for delivery up); and the court may on the application of the licensee make such order under section 228 as it thinks fit having regard to the terms of the licence.

[cf. 1988 c. 48 s. 191M U.K.]

Section 224
�Performers’ non-economic rights
�

Non-economic rights

(1) The rights conferred on a performer by—

section 202 (consent required for fixation, etc. of unfixed performance);

section 206 (infringement of performer’s rights by use of fixation made without consent); and

section 207 (infringement of performer’s rights by importing, exporting, possessing or dealing with infringing fixation),

are not assignable or transmissible, except to the following extent.

They are referred to in this Part as “a performer’s non-economic rights”.

(2): On the death of a person entitled to any such right—
(a) �: the right passes to such person as he may by testamentary disposition specifically direct; and
(b) �: if or to the extent that there is no such direction, the right is exercisable by his personal representatives.

(3): References in this Part to the performer, in the context of the person having any such right, are to be construed as references to the person for the time being entitled to exercise those rights.
(4): Where by virtue of subsection (2)(a) a right becomes exercisable by more than one person, it is exercisable by each of them independently of the other or others.
(5): Any damages recovered by personal representatives by virtue of this section in respect of an infringement after a person’s death devolves as part of his estate as if the right of action had subsisted and been vested in him immediately before his death.

[cf. 1988 c. 48 s. 192A U.K.]

Section 225
�Transmissibility of rights of person having fixation rights
�

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(1): The rights conferred by this Part on a person having fixation rights are not assignable or transmissible.
(2): This does not affect section 208(2)(b) or (3)(b), so far as those provisions confer rights under this Part on a person to whom the benefit of a contract or licence is assigned.

[cf. 1988 c. 48 s. 192B U.K.]

Section 226
�Consent
�

(1): Consent for the purposes of this Part by a person having a performer’s non-economic rights, or by a person having fixation rights, may be given in relation to a specific performance, to a specified description of performances or to performances generally, and may relate to past or future performances.
(2): A person having fixation rights in a performance is bound by any consent given by a person through whom he derives his rights under the exclusive fixation contract or licence in question, in the same way as if the consent had been given by him.
(3): Where a performer’s non-economic right passes to another person, any consent binding on the person previously entitled binds the person to whom the right passes in the same way as if the consent had been given by him.

[cf. 1988 c. 48 s. 193 U.K.]

Section 227
�Infringement actionable
�

Remedies for infringement

An infringement of a performer’s non-economic rights is actionable as a breach of statutory duty owed to the person entitled to the rights.

Section 228
�Order for delivery up
�

Delivery up of infringing fixation

(1): Where a person has in his possession, custody or control for the purpose of trade or business an infringing fixation of a performance, a person having performer’s rights or fixation rights in relation to the performance under this Part may apply to the court for an order that the fixation be delivered up to him or to such other person as the court may direct.
(2): An application may not be made after the end of the period specified in section 230; and the court shall not make an order unless the court also makes, or it appears to the court that there are grounds for making, an order under section 231 (order as to disposal of infringing fixation).
(3): A person to whom a fixation is delivered up in pursuance of an order under this section shall, if an order under section 231 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

(4) Nothing in this section affects any other power of the court.

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[cf. 1988 c. 48 s. 195 U.K.]

Section 229
�Meaning of “infringing fixation”
�

(1): In this Part “infringing fixation”, in relation to a performance, is to be construed in accordance with this section.
(2): For the purposes of a performer’s rights, a fixation of the whole or any substantial part of a performance of his is an infringing fixation if it is made, otherwise than for private purposes, without his consent.
(7): In this Part “infringing fixation” includes a fixation falling to be treated as an infringing fixation by virtue of any of the following provisions of Division II—

section 243(3) (fixations made for purposes of instruction or examination);

section 245(3) (fixations made by educational establishments for educational purposes);

section 251(2) (fixations of performance in electronic form retained on transfer of principal fixation); or

section 256(3) (fixations made for the purposes of broadcast or cable programme),

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but otherwise does not include a fixation made in accordance with any of the provisions of Division II.

(8) For the purposes of subsection (5)(a) “lawfully made” does not include the making of a fixation in a country, territory or area where there is no law protecting rights in performances in the performance or where the rights in performances in the performance has expired.

[cf. 1988 c. 48 s. 197 U.K.]

Section 230
�Period after which remedy of delivery up not available
�

Supplementary provisions with respect to delivery up

(3): In subsection (2) “disability” has the same meaning as in the Limitation Ordinance (Cap 347).

[cf. 1988 c. 48 s. 203 U.K.]

Section 231
�Order as to disposal of infringing fixation
�

Remarks:

Amendments retroactively made — see 25 of 1998 s. 2

(2): In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of the rights conferred by this Part would be adequate to compensate the person or persons entitled to the rights and to protect their interests.
(3): The power to make rules of court under section 54 of the High Court Ordinance (Cap 4) includes power to make rules of court for the purposes of this section. (Amended 25 of 1998 s. 2)

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(5): An order under this section does not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.
(6): Where there is more than one person interested in a fixation, the court shall make such order as it thinks just and may (in particular) direct that the fixation be sold, or otherwise dealt with, and the proceeds divided.
(7): If the court decides that no order should be made under this section, the person in whose possession, custody or control the fixation was before being delivered up is entitled to its return.
(8): References in this section to a person having an interest in a fixation include any person in whose favour an order could be made in respect of the fixation under this section or under section 111 (which makes similar provision in relation to infringement of copyright).

[cf. 1988 c. 48 s. 204 U.K.]

Section 232
�Jurisdiction of District Court
�

Remarks:

Amendments retroactively made — see 25 of 1998 s. 2

(1): The District Court may entertain proceedings under—
(a) �: section 228 (order for delivery up of infringing fixation); or
(b) �: section 231 (order as to disposal of infringing fixation), where the value of the infringing fixation in question does not exceed the limit for actions in tort set out in section 32 of the District Court Ordinance (Cap 336).

(2) Nothing in this section affects the jurisdiction of the Court of First Instance. (Amended 25 of 1998 s. 2)

[cf. 1988 c. 48 s. 205 U.K.]

Section 233
�Jurisdiction of Copyright Tribunal
�

Jurisdiction of Copyright Tribunal

(1) The Copyright Tribunal has jurisdiction under this Part to hear and determine proceedings under—

(a) �section 213 (application to give consent on behalf of owner of the right of reproduction);

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(b) �paragraph 6 of Schedule 3 (contrary rights).

(2) The provisions of Division IX of Part II (general provisions relating to the Copyright Tribunal) apply in relation to the Tribunal when exercising any jurisdiction under this Part.

[cf. 1988 c. 48 s. 205B U.K.]

Section 234
�Qualifying person
�

In this Part “qualifying person” means—

(a) �: an individual domiciled or resident or having a right of abode in Hong Kong or elsewhere; or
(b) �: a body incorporated under the law of any country, territory or area, subject to section 236.

[cf. 1988 c. 48 s. 206 U.K.]

Section 235
�Ships, aircraft and hovercraft registered in Hong Kong
�

This Part applies to things done on a ship, aircraft or hovercraft registered under the law of Hong Kong as it applies to things done in Hong Kong.

[cf. 1988 c. 48 s. 210 U.K.]

Section 236
�Denial of protection to people of countries, etc. not giving adequate protection to
�Hong Kong performers
�

Remarks:

Amendments retroactively made — see 22 of 1999 s. 3

(1): Subject to subsection (5), if it appears to the Chief Executive in Council that performer’s rights of Hong Kong performers or fixation rights of Hong Kong qualifying persons are not adequately protected in a country, territory or area as a result of any prejudicial treatment given to those performers or qualifying persons by that country, territory or area, the Chief Executive in Council may by regulation in accordance with this section restrict the rights conferred by this Part in relation to the performances of the performers connected with that country, territory or area or in relation to fixations made by qualifying persons connected with that country, territory or area.
(2): The Chief Executive in Council shall designate in the regulation the country, territory or area concerned and provide that, for the purposes specified in the regulation, a performance given or a fixation made after a date specified in the regulation does not qualify for protection under this Part—

(a) �in the case of a performance, if at the time of the performance the performer is an individual domiciled or resident or having a right of abode in that country, territory or area (and not at the same time domiciled or resident or having a right of abode in Hong Kong); or

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(b) in the case of a fixation, if at the time of the making of the fixation, the maker is—

(i) �: an individual domiciled or resident or having a right of abode in that country, territory or area (and not at the same time domiciled or resident or having a right of abode in Hong Kong); or
(ii) �: a body incorporated under the law of that country, territory or area, and the regulation may make such provision for all the purposes of this Part or for such purposes as are specified in the regulation, and either generally or in relation to such class of cases as are specified in the regulation, having regard to the nature and extent of that prejudicial treatment referred to in subsection (1).

(5): The Chief Executive in Council shall not exercise his power under this section in relation to a country, territory or area which is a party to a bilateral or multilateral copyright or related right convention to which Hong Kong is also a party or the application of which has been extended to Hong Kong.

(Amended 22 of 1999 s. 3)

Section 237
�Transitional provisions and savings
�

Schedule 3 contains transitional provisions and savings relating to performances given and acts or events occurring, before the commencement of this Part, and otherwise with respect to the operation of the provisions of this Part.

Section 238 Expressions having same meaning as in copyright provisions

Interpretation

(1) The following expressions have the same meaning in this Part as in Part II (copyright)—

article in transit;

authorized officer;

broadcast;

business;

cable programme;

cable programme service;

Commissioner;

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export;

film;

import;

literary work;

published; and

sound recording.

(2) The provisions of section 8(3) to (5), sections 9(4) and 27(4) (supplementary provisions relating to broadcasting and cable programme services) apply for the purposes of this Part, and in relation to an infringement of the rights conferred by this Part, as they apply for the purposes of Part II and in relation to an infringement of copyright.

[cf. 1988 c. 48 s. 211 U.K.]

Section 239
�Index of defined expressions
�

The following Table shows provisions defining or otherwise explaining expressions used in this Part (other than provisions defining or explaining an expression used only in the same section)—

broadcast (and related expressions) section 238 (and section 8)
�business section 238(1) (and section 198)
�cable programme, cable programme service (and section 238 (and section 9)
�related expressions)
�consent of performer (in relation to performer’s section 215(2)
�economic rights)
�copy and copying section 203
�exclusive fixation contract section 208(1)
�exclusive licence section 218
�film section 238(1) (and section 7)
�fixation (of a performance) section 200(2)
�fixation rights (person having) section 208(2) and (3)
�infringing fixation section 229
�literary work section 238(1) (and section 4(1))
�performance section 200(2)
�performer section 200(2)
�performer’s economic rights section 215(1)
�performer’s non-economic rights section 224(1)
�published section 238(1) (and section 196)
�qualifying performance section 201
�qualifying person section 234
�right of distribution section 204(5)
�right of making available to the public section 205(5)
�right of reproduction section 203(4)
�

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rights owner (in rights) sound recording	relation	to	performer’s	economic	section 215(3) and (4) section 238(1) (and section 6)
					[cf. 1988 c. 48 s. 212 U.K.]

Section 240 Introductory

DIVISION II RIGHTS IN PERFORMANCES: PERMITTED ACTS

(1): The provisions of this Division specify acts which may be done in relation to a performance or fixation notwithstanding the rights conferred by this Part; they relate only to the question of infringement of those rights and do not affect any other right or obligation restricting the doing of any of the specified acts.
(2): In determining whether an act specified in this Division may be done in relation to a performance or fixation notwithstanding the rights conferred by this Part, the primary consideration is that the act does not conflict with a normal exploitation of the performance or fixation by the rights owner of the rights conferred by this Part and does not unreasonably prejudice the legitimate interests of the rights owner of those rights.
(3): No inference is to be drawn from the description of any act which may by virtue of this Division be done without infringing the rights conferred by this Part as to the scope of those rights.
(4): The provisions of this Division are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision.

[cf. 1988 c. 48 Sch. 2 para. I U.K.]

Section 241 Criticism, reviews and news reporting

(1): Fair dealing with a performance or fixation—
(a) �: for the purpose of criticism or review, of that or another performance or fixation, or of a work; or
(b) �: for the purpose of reporting current events,

does not infringe any of the rights conferred by this Part.

(2) Expressions used in this section have the same meaning as in section 39.

[cf. 1988 c. 48 Sch. 2 para. 2 U.K.]

Section 242 Incidental inclusion of performance or fixation

(1) The rights conferred by this Part are not infringed by the incidental inclusion of a performance or fixation in a sound recording, film, broadcast or cable programme.

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(2): Those rights are also not infringed by anything done in relation to copies of, or the playing, showing, broadcasting or inclusion in a cable programme service of, anything whose making was, by virtue of subsection (1), not an infringement of those rights.
(3): A performance or fixation so far as it consists of music, or words spoken or sung with music, is not regarded as incidentally included in a sound recording, broadcast or cable programme if it is deliberately included.

(4) Expressions used in this section have the same meaning as in section 40.

[cf. 1988 c. 48 Sch. 2 para. 3 U.K.]

Section 243
�Things done for purposes of instruction or examination
�

(3): Where a fixation which would otherwise be an infringing fixation is made in accordance with this section but is subsequently dealt with, it is treated as an infringing fixation for the purposes of that dealing, and if that dealing infringes any right conferred by this Part, for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, or offered or exposed for sale or hire.

(4) Expressions used in this section have the same meaning as in section 41.

[cf. 1988 c. 48 Sch. 2 para. 4 U.K.]

Section 244
�Playing or showing sound recording, film, broadcast or cable programme at
�educational establishment
�

(1): The playing or showing of a sound recording, film, broadcast or cable programme at an educational establishment for the purposes of instruction before an audience consisting of teachers and pupils at the establishment and other persons directly connected with the activities of the establishment is not a playing or showing of a performance in public for the purposes of infringement of the rights conferred by this Part.
(2): A person is for this purpose directly connected with the activities of an educational establishment if he is the parent or guardian of a pupil at the establishment.

(3) Expressions used in this section have the same meaning as in section 43.

[cf. 1988 c. 48 Sch. 2 para. 5 U.K.]

Legislative Texts

Section 245 Recording of broadcasts and cable programmes by educational establishments

(1): A recording of a broadcast or cable programme, or a copy of such a recording, may be made by or on behalf of an educational establishment for the educational purposes of that establishment without thereby infringing any of the rights conferred by this Part in relation to any performance or fixation included in it.
(2): Recording or copying is not authorized by this section if, or to the extent that, licences under licensing schemes are available authorizing the recording or copying in question and the person making the recordings or copies knew or ought to have been aware of that fact.
(3): Where a recording or copy which would otherwise be an infringing fixation is made in accordance with this section but is subsequently dealt with, it is treated as an infringing fixation for the purposes of that dealing, and if that dealing infringes any right conferred by this Part, for all subsequent purposes.

For this purpose “dealt with” means sold or let for hire, or offered or exposed for sale or hire.

(4) Expressions used in this section have the same meaning as in section 44.

[cf. 1988 c. 48 Sch. 2 para. 6 U.K.]

Section 246 Copying by librarians or archivists: articles of cultural or historical importance

(1) The librarian or archivist of a specified library or archive may make a copy of an article of cultural or historical importance or interest and deposit the copy at the library or archive without infringing any right conferred by this Part in respect of that article if the article is likely to be lost to Hong Kong through sale or export.

(2) Expressions used in this section have the same meaning as in section 53.

[cf. 1988 c. 48 Sch. 2 para. 7 U.K.]

Section 247
�Legislative Council and judicial proceedings
�

(1) The rights conferred by this Part are not infringed by anything done for the purposes of the proceedings of the Legislative Council or judicial proceedings or for the purpose of reporting such proceedings.

(2) Expressions used in this section have the same meaning as in section 54.

[cf. 1988 c. 48 Sch. 2 para. 8 U.K.]

Section 248
�Statutory inquiries
�

(1) The rights conferred by this Part are not infringed by anything done for the purposes of the proceedings of a statutory inquiry or for the purpose of reporting any such proceedings held in public.

(2) Expressions used in this section have the same meaning as in section 55.

Legislative Texts

[cf. 1988 c. 48 Sch. 2 para. 9 U.K.]

Section 249
�Public records
�

(1) Material which is comprised in public records which are open to public inspection may be copied, and a copy may be supplied to any person without infringing any right conferred by this Part.

(2) Expressions used in this section have the same meaning as in section 58.

[cf. 1988 c. 48 Sch. 2 para. 10 U.K.]

Section 250
�Acts done under statutory authority
�

(1): Where the doing of a particular act is specifically authorized by an Ordinance, whenever enacted, then, unless the Ordinance provides otherwise, the doing of that act does not infringe the rights conferred by this Part.
(2): Nothing in this section is to be construed as excluding any defence of statutory authority otherwise available under or by virtue of any Ordinance.

(3) Expressions used in this section have the same meaning as in section 59.

[cf. 1988 c. 48 Sch. 2 para. 11 U.K.]

Section 251
�Transfer of fixations of performances in electronic form
�

(1) This section applies where a fixation of a performance in electronic form (other than such a fixation which was made available to the public) has been purchased on terms which, expressly or impliedly or by virtue of any rule of law, allow the purchaser to make further fixations in connection with his use of the fixation.

(2): If there are no express terms—
(a) �: prohibiting the transfer of the fixation by the purchaser, imposing obligations which continue after a transfer, prohibiting the assignment of any consent or terminating any consent on a transfer; or
(b) �: providing for the terms on which a transferee may do the things which the purchaser was permitted to do,

anything which the purchaser was allowed to do may also be done by a transferee without infringement of the rights conferred by this Part, but any fixation made by the purchaser which is not also transferred is to be treated as an infringing fixation for all purposes after the transfer.

(3): Subsection (2) applies where the original purchased fixation is no longer usable and what is transferred is a further copy used in its place.
(4): The above provisions also apply on a subsequent transfer, with the substitution for references in subsection (2) to the purchaser of references to the subsequent transferor.

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(5) This section does not apply in relation to a fixation purchased before the commencement of this Part.

(6) Expressions used in this section have the same meaning as in section 64.

[cf. 1988 c. 48 Sch. 2 para. 12 U.K.]

Section 252
�Certain copying permitted when performances made available to the public
�

The rights conferred by this Part in a fixed performance are not infringed by the copying of a fixation which is reasonably required for the viewing or listening of the fixation by a member of the public to whom the fixation is made available (within the meaning of section 205) provided that such act does not conflict with a normal exploitation of the fixation and does not unreasonably prejudice the legitimate interests of the performer or the person who has fixation rights in relation to the performance.

Section 253
�Use of fixations of spoken words in certain cases
�

(1): Where a fixation of the reading or recitation of a literary work is made for the purpose—
(a) �: of reporting current events; or
(b) �: of broadcasting or including in a cable programme service the whole or part of the reading or recitation,

it is not an infringement of the rights conferred by this Part to use the fixation (or to copy the fixation and use the copy) for that purpose, if the conditions in subsection (2) are met.

(2): The conditions are that—
(a) �: the fixation is a direct fixation of the reading or recitation and is not taken from a previous fixation or from a broadcast or cable programme;
(b) �: the making of the fixation was not prohibited by or on behalf of the person giving the reading or recitation;
(c) �: the use made of the fixation is not of a kind prohibited by or on behalf of that person before the fixation was made; and
(d) �: the use is by or with the authority of a person who is lawfully in possession of the fixation.
(3): Expressions used in this section have the same meaning as in section 67.

[cf. 1988 c. 48 Sch. 2 para. 13 U.K.]

Section 254
�Fixations of folksongs
�

(1) A fixation of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body without infringing any of the rights conferred by this Part, if the conditions in subsection (2) are met.

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(2) The conditions are that—
�

(a)	the words are unpublished and of unknown authorship at the time the fixation is made;
(b)	the making of the fixation does not infringe any copyright; and
(c)	its making is not prohibited by any performer.

(3) Copies of a fixation made in reliance on subsection (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing any of the rights conferred by this Part.

(4) In this section—

“designated body” means a body designated for the purposes of section 70; and

“the prescribed conditions” means the conditions prescribed for the purposes of that section, and other expressions used in this section have the same meaning as in that section.

[cf. 1988 c. 48 Sch. 2 para. 14 U.K.]

Section 255 Performance, showing or playing of works for purposes of club, society, etc.

(1) It is not an infringement of any right conferred by this Part to perform, show or play a work (other than a broadcast or a cable programme) as part of the activities of, or for the benefit of, a club, society or other organization if the following conditions are met.

(2): 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.
(3): Expressions used in this section have the same meaning as in section 76.

[cf. 1988 c. 48 Sch. 2 para. 15 U.K.]

Section 256 Incidental fixation for purposes of broadcast or cable programme

(1) A person who proposes to broadcast a fixation of a performance, or include a fixation of a performance in a cable programme service, in circumstances not infringing the rights conferred by this Part is to be treated as having consent for the purposes of this Part for the making of a further fixation for the purposes of the broadcast or cable programme.

(2): That consent is subject to the condition that the further fixation—
(a) �: must not be used for any other purpose; and
(b) �: must be destroyed within 3 months of being first used for broadcasting the performance or including it in a cable programme service.
(3): A fixation made in accordance with this section is treated as an infringing fixation—

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(a) �: for the purposes of any use in breach of the condition mentioned in subsection (2)(a); and
(b) �: for all purposes after that condition or the condition mentioned in subsection (2)(b) is broken.
(4): Expressions used in this section have the same meaning as in section 77. [cf. 1988 c. 48 Sch. 2 para. 16 U.K.]

Section 257

Recordings for purposes of supervision and control of broadcasts and cable

programmes

(1) The rights conferred by this Part are not infringed by the making or use by Radio Television Hong Kong for the purpose of maintaining supervision and control over programmes broadcast by them, of recordings of those programmes.

(2): The rights conferred by this Part are not infringed by the making or use of recordings—
(a) �: by the Broadcasting Authority for the performance of its functions mentioned in section 9 of the Broadcasting Authority Ordinance (Cap 391); or
(b) �: pursuant to the instructions of the Broadcasting Authority in the performance of those functions.
(3): Expressions used in this section have the same meaning as in section 78. [cf. 1988 c. 48 Sch. 2 para. 17 U.K.]

Section 258
�Free public showing or playing of broadcast or cable programme
�

(1) The showing or playing in public of a broadcast or cable programme (other than an encrypted broadcast or cable programme) to an audience who have not paid for admission to the place where the broadcast or programme is to be seen or heard does not infringe any right conferred by this Part in relation to a performance or fixation included in—

(a) �: the broadcast or cable programme; or
(b) �: any sound recording or film which is played or shown in public by reception of the broadcast or cable programme.
(2): The audience are treated as having paid for admission to a place—
(a) �: if they have paid for admission to a place of which that place forms part; or
(3): The following are not regarded as having paid for admission to a place—

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(a) �: persons admitted as residents or inmates of the place which is operated by a charitable organization and the facilities therein are provided not for profit;
(b) �: persons admitted as members of a club or society whose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare and where the payment is only for membership of the club or society and the provision of facilities for seeing or hearing broadcasts or programmes is only incidental to the main purposes of the club or society.

(4) Where the making of the broadcast or inclusion of the programme in a cable programme service was an infringement of the rights conferred by this Part in relation to a performance or fixation, the fact that it was heard or seen in public by the reception of the broadcast or programme is to be taken into account in assessing the damages for that infringement.

(5) Expressions used in this section have the same meaning as in section 81.

[cf. 1988 c. 48 Sch. 2 para. 18 U.K.]

Section 259 Reception and re-transmission of broadcast in cable programme service

(1): The rights conferred by this Part are not infringed by the inclusion of a performance or fixation in a television broadcast or a sound broadcast that is, by reception and immediate retransmission without any alteration, included in a service provided by—

(2): The rights conferred by this Part are not infringed by the inclusion of a performance or fixation in a television broadcast or sound broadcast that is not encrypted and that is, by reception and immediate re-transmission without any alteration, included in a service provided—

until the expiration of 6 months beginning on the day of publication of the notice in accordance with subsection (6).

(3) Where a television broadcast or sound broadcast is made or uplinked from a place in Hong Kong or elsewhere, and the broadcast is a lawful broadcast, then any person who, by the reception and immediate re-transmission of the broadcast without any alteration, includes a programme in a

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service provided by a system or an interconnection specified in subsection (1) or (2), being a programme comprising a performance, shall be in a like position, in any proceedings for infringement of the performer’s right (if any) in the performance, as if he had been the holder of a licence granted by the performer to include the performance in any programme so included in that service.

(4): Notwithstanding subsections (1) and (2), where the making of the broadcast was in infringement of those rights, the fact that the broadcast was re-transmitted as a programme in a cable programme service is to be taken into account in assessing the damages for that infringement.
(5): Where a television broadcast or a sound broadcast is not encrypted, the person who, by the reception and immediate re-transmission of the broadcast without any alteration, includes a programme in a service provided by a system or interconnection specified in subsection (2) is deemed to have been granted an implied licence by the maker of the broadcast to receive and retransmit the broadcast using the system which is only revocable by notice given in accordance with subsection (6).

[cf. 1988 c. 48 Sch. 2 para. 19 U.K.]

Section 260
�Provision of sub-titled copies of broadcast or cable programme
�

(1): A designated body may, for the purpose of providing people who are deaf or hard of hearing, or physically or mentally handicapped in other ways, with copies which are sub-titled or otherwise modified for their special needs, make recordings of television broadcasts or cable programmes without infringing any right conferred by this Part in relation to a performance or fixation included in the broadcast or cable programme.
(2): Recording is not authorized by this section if, or to the extent that, licences under licensing schemes are available authorizing the recording in question and the person making the recordings knew or ought to have been aware of that fact.
(3): In this section “designated body” means a body designated for the purposes of section 83 and other expressions used in this section have the same meaning as in that section.

[cf. 1988 c. 48 Sch. 2 para. 20 U.K.]

Section 261
�Recording of broadcast or cable programme for archival purposes
�

(1) A recording of a broadcast or cable programme of a designated class, or a copy of such a recording, may be made for the purpose of being placed in an archive maintained by a designated body without thereby infringing any right conferred by this Part in relation to a performance or fixation included in the broadcast or cable programme.

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(2) In this section “designated class” and “designated body” mean a class and a body respectively designated for the purposes of section 84 and other expressions used in this section have the same meaning as in that section.

[cf. 1988 c. 48 Sch. 2 para. 21 U.K.]

Section 262 Definitions

DIVISION III PROCEEDINGS RELATING TO IMPORTATION OF INFRINGING FIXATIONS

In this Division—

“detention order” means an order made under section 264(1);

“right holder” means—

(a) (b)	the performer of a performance in which performer’s rights subsist under this Part or the exclusive licensee of the performer’s economic rights in such a performance; or the person who has fixation rights in relation to the performance.
	Section 263 Application for detention order
Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1): A right holder may apply to the Court of First Instance for an order under section 264(1) where he has reasonable grounds for suspecting that the importation of an article that constitutes an infringing fixation of the performance in respect of which he is a right holder may take place. (Amended 25 of 1998 s. 2)
(2): An application under subsection (1) may be made ex parte but with previous notice to the Commissioner.

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(f) �: sets out a sufficiently detailed description of the article in question to make it readily recognizable by the Commissioner;
(g) �: sets out particulars regarding the expected mode of transportation and the expected date of importation and, if available, particulars identifying the importer; and
(h) �: sets out such other information and exhibits such other documents as may be prescribed by rules of court.
(4): No application may be made under subsection (1) with respect to an article in transit.

(5): No application may be made under subsection (1) with respect to the importation by a person of an article for his private and domestic use.
(6): Section 121 applies in respect of an affidavit made in accordance with subsection (3) by the exclusive licensee of the performer’s economic rights that subsist in a qualifying performance under this Part in the same manner as it would apply if the affidavit were made by the owner of those rights.

Section 264
�Issuance of detention order
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1): Where, on the hearing of an application made under section 263, the right holder presents adequate evidence to satisfy the Court of First Instance that the article in question is prima facie an infringing fixation, the Court of First Instance may make an order directing the Commissioner or an authorized officer to take reasonable measures to seize or detain the article on or after its importation.
(2): The Court of First Instance may require the right holder to provide security or an equivalent assurance in an amount sufficient to protect the importer and any other person having an interest in the article to be seized or detained, including the consignee and the owner of the article, from any loss or damage that may be incurred in the event that the seizure or detention is wrongful or the article is released to the importer under section 265(6).
(3): A detention order may contain such terms and conditions as the Court of First Instance considers appropriate.
(4): The Court of First Instance shall not make a detention order with respect to any article that has been seized or detained by, and that is in the custody of, the Commissioner or an authorized officer pursuant to any law.
(5): Where the Commissioner or an authorized officer seizes or detains an article pursuant to any law, other than this Division or Division VII of Part II, any detention order made with respect to that article ceases to have effect.
(6): Where the Court of First Instance makes a detention order, the right holder shall forthwith serve a copy of the order on the Commissioner.
(7): A detention order has effect from the date on which it is made or such later date as may be specified by the Court of First Instance and ceases to have effect 60 days from that date unless the Commissioner or an authorized officer has, pursuant to the order and within that period, seized or detained any article to which the order applies.

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(Amended 25 of 1998 s. 2)

Section 265
�Enforcement of detention order
�

Remarks:

Adaptation amendments retroactively made - see 25 of 1998 s. 2

(3): The Commissioner or an authorized officer may refuse to carry out the detention order if the right holder fails to comply with subsection (2).
(4): The Commissioner may, after giving written notice to the right holder, apply to the Court of First Instance for directions in carrying out the detention order, and the Court of First Instance may, after giving the right holder an opportunity to be heard, give such directions as it thinks fit. (Amended 25 of 1998 s. 2)
(6): Subject to subsection (7) and to any law authorizing the Commissioner or an authorized officer to seize or detain articles, the Commissioner or an authorized officer shall release any article that has been seized or detained pursuant to a detention order to the importer if the right holder has not, within a period of 10 days after notice of the seizure or detention is given to the right holder, notified the Commissioner in writing that an action for infringement in respect of the article has been brought under this Part.
(7): The Court of First Instance may, on application by the right holder, after giving the Commissioner and each person to whom notice is required to be given under subsection (5) an opportunity to be heard, extend the period referred to in subsection (6) by a period not exceeding an

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additional 10 days if it is satisfied that the request for the extension is reasonable. (Amended 25 of 1998 s. 2)

(8): In proceedings under subsection (7), the Court of First Instance may require the right holder to provide security or an equivalent assurance in addition to that provided in accordance with section 264(2). (Amended 25 of 1998 s. 2)
(9): Where the right holder has, within the period referred to in subsection (6), as may be extended under subsection (7), notified the Commissioner in writing that an action for infringement in respect of the article has been brought under this Part, the Commissioner or an authorized officer shall retain custody of the article subject to the direction of the court in the infringement proceedings.
(10): No public holiday, gale warning day or black rainstorm warning day is reckoned in the computation of the period referred to in subsection (6), as may be extended under subsection (7).

(11) In this section—

“black rainstorm warning day” means any day throughout or for part of which a black rainstorm warning is in force, and “black rainstorm warning” means a warning issued by the Director of the Hong Kong Observatory of a heavy rainstorm in, or in the vicinity of, Hong Kong by the use of the heavy rainstorm signal commonly referred to as Black; (Amended L.N. 362 of 1997)

Section 266
�Variation or setting aside of detention order
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1): The Commissioner or the right holder may at any time apply to the Court of First Instance to vary the detention order.
(2): The importer or any other person affected by the detention order may at any time apply to the Court of First Instance to vary or set aside the order.
(3): A person who makes an application under subsection (1) or (2) shall give to the other parties such notice of the day fixed for the hearing of the application as a judge of the Court of First Instance may order.
(4): On the hearing of an application under subsection (1) or (2) to vary the detention order, the Court of First Instance may vary the order in such manner as it thinks just.

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(b) �the parties to an application under subsection (2) are the Commissioner, the right holder, the applicant and the importer, if the importer is not the applicant.

(Amended 25 of 1998 s. 2)

Section 267
�Disclosure of information
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1) Where an article is seized or detained pursuant to a detention order, the Commissioner may disclose to the right holder—

(a) �: the names and addresses of the importer, the consignor and the consignee;
(b) �: the nature and quantity of articles seized or detained pursuant to the order;
(c) �: any statement made to the Commissioner or an authorized officer by any person in connection with the seizure or detention, either with the prior consent in writing of that person or without such consent where the person is dead or cannot after reasonable enquiries by the Commissioner as to his whereabouts be found by the Commissioner; and
(d) �: any other information or document relating to any article seized or detained pursuant to the order which the Commissioner thinks fit to disclose.
(2): Where the right holder seeks disclosure of—
(a) �: any information or document that is not referred to in subsection (1); or
(b) �: any information or document that is referred to in subsection (1) but which the Commissioner has not disclosed,

(3) An application under subsection (2) may be begun by motion with previous notice to the Commissioner.

Section 268
�Inspection of articles, release of samples, etc.
�

(2): Where more than one article is seized or detained pursuant to a detention order, the Commissioner or an authorized officer may permit the right holder or the importer to remove

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samples of the seized or detained articles if the right holder or the importer, as the case may be, gives the Commissioner or authorized officer the requisite undertakings.

(3): For the purposes of subsection (2), the requisite undertakings are undertakings in writing that the person giving the undertaking will—

(4): If the Commissioner or an authorized officer permits the inspection of any seized or detained article, or the removal of a sample, by the right holder in accordance with this section, the Government is not liable to the importer for any loss or damage suffered by the importer arising out of—

Section 269
�Costs payable
�

(1): The Commissioner may assess the costs incurred by the Government in connection with the carrying out of a detention order and may deduct those costs from the amount paid as a deposit by the right holder under section 265(2).
(2): Any costs assessed under subsection (1) shall be payable by the right holder to the Government and recoverable as a civil debt.

Section 270
�Compensation payable to importer, etc.
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(1) Where an article is seized or detained pursuant to a detention order and the article is released pursuant to section 265(6), the importer, the consignee or the owner of the article may, within 6 months after the date on which the order is made, apply to the Court of First Instance for compensation for any loss or damage suffered by him by reason of the seizure or detention.

(2): Where—
(a) �: an article is seized or detained pursuant to a detention order;
(b) �: an action for infringement is brought under this Part in respect of the article within the period referred to in section 265(6), as may be extended under section 265(7); and
(c) �: the action is discontinued, the claim of infringement is withdrawn or the court in the infringement proceedings determines that the infringement is not proved,

the importer, the consignee or the owner of the article may, within 6 months after the date on which the action is discontinued, the claim is withdrawn or the court renders its determination, as the case may be, apply to the Court of First Instance for compensation for any loss or damage suffered by him by reason of the seizure or detention.

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(3) On an application under subsection (1) or (2), the Court of First Instance may make such order for compensation as it deems fit.

(Amended 25 of 1998 s. 2)

Section 271
�Rules
�

Remarks:

Amendments retroactively made - see 25 of 1998 s. 2

(Amended 25 of 1998 s. 2)

Section 272
�Protection of Commissioner and authorized officers
�

(1): The Commissioner and authorized officers are not liable for any loss or damage suffered by any person as a result of any action taken or omitted to be taken in good faith in connection with the carrying out of a detention order.
(2): The protection conferred by subsection (1) on the Commissioner and authorized officers in respect of any action taken or omitted to be taken in good faith in connection with the carrying out of those duties shall not affect in any manner any liability of the Government for that action taken or omitted to be taken.

Section 273
�Devices designed to circumvent copy-protection
�

Expanded Cross Reference:

Sections 115, 116, 117

PART IV
�TECHNOLOGICAL MEASURES AND GENERAL
�

Devices designed to circumvent copy-protection

(1): This section applies where—
(a) �: copies of a copyright work are issued or made available to the public; or
(b) �: an unfixed performance is made available to the public or copies of a fixation of a performance are issued or made available to the public,

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by or with the licence of the copyright owner, the performer or the person having fixation rights in relation to the performance, as may be appropriate, in any form which is copy-protected.

(2) The person issuing or making available the copies or the unfixed performance to the public has the same rights and remedies against a person who, knowing or having reason to believe that it will be used to make infringing copies or infringing fixations—

(a) �: makes, imports, exports, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire, or possesses for the purpose of trade or business, any device or means specifically designed or adapted to circumvent the form of copy-protection employed; or
(b) �: publishes information intended to enable or assist persons to circumvent that form of copy-protection,

as a copyright owner has in respect of an infringement of copyright.

(3): Further, the person issuing or making available the copies or the unfixed performance to the public has the same rights and remedies under section 109 (delivery up) in relation to any such device or means which a person has in his possession, custody or control with the intention that it should be used to make infringing copies of copyright works or infringing fixations of performances, as a copyright owner has in relation to an infringing copy.
(4): References in this section to copy-protection include any device or means specifically intended to prevent or restrict copying of a work or fixation of a performance or to impair the quality of copies or fixations made.
(5): Sections 115 to 117 (presumptions as to certain matters relating to copyright) apply in relation to proceedings under this section as they do in relation to proceedings under Part II (copyright), and section 111 applies, with the necessary modifications, in relation to the disposal of anything delivered up by virtue of subsection (3). <* Note-Exp. X-Ref.: Sections 115, 116, 117*>

[cf. 1988 c. 48 s. 296 U.K.]

Section 274
�Rights and remedies in respect of unlawful acts to interfere with rights
�management information
�

Rights management information

(1) A person who provides rights management information is entitled to the following rights and remedies.

(2): He has the same rights and remedies against a person who—
(a) �: removes or alters any electronic rights management information provided by him without his authority; or
(b) �: issues or makes available to the public, sells or lets for hire, imports into or exports from Hong Kong, broadcasts or includes in a cable programme service, without his authority, works or copies of works, performances, fixations of performances to which the electronic rights management information is attached knowing that the electronic rights management information has been removed or altered without his authority,

as a copyright owner has in respect of an infringement of copyright.

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(3): References in this section to rights management information means—
(a) �: information which identifies the work, the author of the work, the owner of any right in the work, the performer, or the performance of the performer;
(b) �: information about the terms and conditions of use of the work, the person having fixation rights in relation to the performance, or the performance; or
(c) �: any numbers or codes that represent such information,

when any of these items of information is attached to a copy of a work or a fixed performance or appears in connection with the making available of a work or a fixed performance to the public.

Section 275
�Rights and remedies in respect of apparatus, etc. for unauthorized reception of
�transmissions
�

Fraudulent reception of transmissions

(1): A person who—
(a) �: makes charges for the reception of programmes included in a broadcasting or cable programme service provided from a place in Hong Kong or elsewhere; or
(b) �: sends encrypted transmissions of any other description from a place in Hong Kong or elsewhere,

is entitled to the following rights and remedies.

(2): He has the same rights and remedies against a person who—
(a) �: makes, imports, exports or sells or lets for hire any apparatus or device designed or adapted to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so; or
(b) �: publishes any information which is calculated to enable or assist persons to receive the programmes or other transmissions when they are not entitled to do so,

as a copyright owner has in respect of an infringement of copyright.

(3): Further, he has the same rights and remedies under section 109(delivery up) in relation to any such apparatus or device as a copyright owner has in relation to an infringing copy.
(4): In section 108(1) (innocent infringement of copyright) as it applies to proceedings for infringement of the rights conferred by this section, the reference to the defendant not knowing or having reason to believe that copyright subsisted in the work is construed as a reference to his not knowing or having reason to believe that his acts infringed the rights conferred by this section.
(5): Section 111 applies, with the necessary modifications, in relation to the disposal of anything delivered up by virtue of subsection (3).

[cf. 1988 c. 48 s. 298 U.K.]

Section 276 Denial of rights under section 275 to people of countries, etc. not giving adequate

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protection to Hong Kong broadcasts, cable programmes and encrypted transmissions

Remarks:

Amendments retroactively made —see 22 of 1999 s. 3

(1): Subject to subsection (3), if it appears to the Chief Executive in Council that broadcasts made or cable programmes or encrypted transmissions sent from Hong Kong are not adequately protected in a country, territory or area as a result of any prejudicial treatment given to those broadcasts, cable programmes or transmissions by that country, territory or area, the Chief Executive in Council may by regulation in accordance with this section restrict the rights conferred by section 275 in relation to broadcasters or providers of cable programme services or encrypted transmissions of that country, territory or area.

and the regulation may make such provision for all the purposes of section 275 or for such purposes as are specified in the regulation, and either generally or in relation to such class of cases as are specified in the regulation, having regard to the nature and extent of that prejudicial treatment referred to in subsection (1).

(3) The Chief Executive in Council shall not exercise his power under this section in relation to a country, territory or area which is a party to a bilateral or multilateral copyright or related right convention to which Hong Kong is also a party or the application of which has been extended to Hong Kong.

(Amended 22 of 1999 s. 3)

Section 277
�Supplementary provisions as to fraudulent reception
�

Where section 275 applies in relation to a broadcasting service or cable programme service, it also applies to any service run for the person providing that service, or a person providing programmes for that service, which consists wholly or mainly in the sending by means of a telecommunications system of sounds or visual images, or both.

[cf. 1988 c. 48 s. 299 U.K.]

Section 278
�Commissioner may authorize officers
�

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General
�

The Commissioner may authorize any public officer to exercise any of the powers and perform any of the duties conferred or imposed on an authorized officer under this Ordinance.

Section 279
�Interpretation
�

Expressions used in this Part which are defined for the purposes of Parts II (copyright) and III (rights in performances) have the same meaning as in those Parts.

Section 280 (Omitted as spent)

(Omitted as spent)

Section 281 (Omitted as spent)

(Omitted as spent)

Schedule 1 EDUCATIONAL ESTABLISHMENTS

[section 195 & Schedules 2 & 3]

Any school, within the meaning of section 3 of the Education Ordinance (Cap 279), entirely maintained and controlled by the Government.
Any school which is registered or provisionally registered under the Education Ordinance (Cap 279).
Any post secondary college registered under the Post Secondary Colleges Ordinance (Cap 320).
Lingnan University established by the Lingnan University Ordinance (Cap 1165). (Replaced 54 of 1999 s. 36)
The Hong Kong Institute of Education established by The Hong Kong Institute of Education Ordinance (Cap 444).
University of Hong Kong established by the University of Hong Kong Ordinance (Cap 1053).
The Hong Kong Polytechnic University established by The Hong Kong Polytechnic University Ordinance (Cap 1075).
The Chinese University of Hong Kong established by The Chinese University of Hong Kong Ordinance (Cap 1109).
Hong Kong Baptist University established by the Hong Kong Baptist University Ordinance (Cap 1126).
Any industrial training centre or skills centre defined in section 2 of the Vocational Training Council Ordinance (Cap 1130).

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Any technical college or technical institute defined in section 2 of the Vocational Training Council Ordinance (Cap 1130).
City University of Hong Kong established by the City University of Hong Kong Ordinance (Cap 1132).
The Hong Kong Academy for Performing Arts established by The Hong Kong Academy for Performing Arts Ordinance (Cap 1135).
The Hong Kong University of Science and Technology established by The Hong Kong University of Science and Technology Ordinance (Cap 1141).
The Open Learning Institute of Hong Kong established by The Open Learning Institute of Hong Kong Ordinance (Cap 1145).

Schedule 2 COPYRIGHT: TRANSITIONAL PROVISIONS AND SAVINGS

Expanded Cross Reference:

17, 18, 19, 20, 21, 107, 108, 109, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133

Remarks:

Amendments retroactively made — see 25 of 1998 s. 2

[sections 173, 191 & 199]

Introductory

1. (1) In this Schedule—

“the 1911 Act” means the Copyright Act 1911 (1911 c. 46 U.K.) as extended to Hong Kong by Proclamation No. 3 of 1912 published in the Gazette of 28 June 1912;

“the 1956 Act” means the Copyright Act 1956 (1956 c. 74 U.K.) as extended to Hong Kong by the Copyright (Hong Kong) Orders 1972 to 1990 (App. III, p. DD1);

“the Copyright Ordinance” means the Copyright Ordinance (Cap 39) in force immediately before the commencement of Part II of this Ordinance;

“the new copyright provisions” means the provisions of this Ordinance relating to copyright, that is, Part II (including this Schedule and Schedule 1) and Schedules 4 and 5 so far as they make amendments or repeals consequential on the provisions of Part II;

“the WTO Ordinance” means the Intellectual Property (World Trade Organization Amendments) Ordinance 1996 (11 of 1996).

(2): References in this Schedule to “commencement”, without more, are to the date on which this Ordinance (other than the provisions specified in section 1(2) of this Ordinance) comes into force.
(3): References in this Schedule to “existing works” are to works made before commencement; and for this purpose a work of which the making extended over a period is to be taken to have been made when its making was completed.

[cf. 1988 c. 48 Sch. 1 para. 1 U.K.]

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2. (1) In relation to the 1956 Act, references in this Schedule to a work include any work or other subject-matter within the meaning of that Act.

(2): In relation to the 1911 Act—
(a) �: references in this Schedule to “copyright” include the right conferred by section 24 of that Act in substitution for a right subsisting immediately before the commencement of that Act;
(b) �: references in this Schedule to “copyright in a sound recording” are to the copyright under that Act in records embodying the recording; and
(c) �: references in this Schedule to “copyright in a film” are to any copyright under that Act in the film (so far as it constituted a dramatic work for the purposes of that Act) or in photographs forming part of the film.

[cf. 1988 c. 48 Sch. 1 para. 2 U.K.]

General principles: continuity of the law

The new copyright provisions apply in relation to things existing at commencement as they apply in relation to things coming into existence after commencement, subject to any express provision to the contrary.
[cf. 1988 c. 48 Sch. 1 para. 3 U.K.]

(1) The provisions of this paragraph have effect for securing the continuity of the law so far as the new copyright provisions re-enact (with or without modification) earlier provisions.

(2): A reference in an enactment, instrument or other document to copyright, or to a work or other subject-matter in which copyright subsists, which apart from this Ordinance would be construed as referring to copyright under the 1956 Act is to be construed, so far as may be required for continuing its effect, as being, or as the case may require, including, a reference to copyright under this Ordinance or to works in which copyright subsists under this Ordinance.
(3): Anything done (including subsidiary legislation made), or having effect as done, under or for the purposes of a provision repealed by this Ordinance has effect as if done under or for the purposes of the corresponding provision of the new copyright provisions.
(4): References (expressed or implied) in this Ordinance or any other enactment, instrument or document to any of the new copyright provisions are, so far as the context permits, to be construed as including, in relation to times, circumstances and purposes before commencement, a reference to corresponding earlier provisions.
(5): A reference (expressed or implied) in an enactment, instrument or other document to a provision repealed by this Ordinance is to be construed, so far as may be required for continuing its effect, as a reference to the corresponding provision of this Ordinance.
(6): The provisions of this paragraph have effect subject to any specific transitional provision or saving and to any express amendment made by this Ordinance.

[cf. 1988 c. 48 Sch. 1 para. 4 U.K.]

Subsistence of copyright: general

5. (1) Copyright subsists in an existing work after commencement if copyright subsisted in it immediately before commencement.

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(2): Copyright subsists in an existing work after commencement if—
(b) �: copyright under the 1956 Act in the work would not have expired had copyright subsisted in it under that Act.

(3) Copyright in an existing work qualifying for copyright protection under subparagraph (2) expires at the time when copyright in the work would expire under the following provisions had copyright subsisted in it immediately before commencement.

Contrary rights

6. Where any person has before commencement incurred any significant expenditure or liability in connection with the reproduction or performance of a work or other subject-matter in a manner that at the time was lawful, or for the purpose of or with a view to the reproduction or performance of a work at a time when it would have been lawful but for the commencement, nothing in this Ordinance diminishes or prejudices any right or interest arising from or in connection with such action that is subsisting and valuable immediately before commencement unless the person who by virtue of paragraph 5(2) becomes entitled to restrain the reproduction or performances agrees to pay such compensation as the parties agree, or failing such agreement, as the Copyright Tribunal may determine.

Subsistence of copyright: films, broadcasts and cable programmes

7. (1) No copyright subsists in a film, as such, made before 12 December 1972.

(2): Where a film made before that date was an original dramatic work within the meaning of the 1911 Act, the new copyright provisions have effect in relation to the film as if it was an original dramatic work within the meaning of Part II.
(3): The new copyright provisions have effect in relation to photographs forming part of a film made before 12 December 1972 as they have effect in relation to photographs not forming part of a film.

references in the new copyright provisions, and in this Schedule, to copyright in a film are to any copyright in the film as an original dramatic work or, as the case may be, in photographs forming part of the film.

[cf. 1988 c. 48 Sch. 1 para. 7 U.K.]

8. No copyright subsists in—

(a) �a broadcast made before 12 December 1972; or

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(b) a cable programme included in a cable programme service before 11 March 1994,

and any such broadcast or cable programme is to be disregarded for the purposes of section 20(3) of this Ordinance (duration of copyright in repeats).

[cf. 1988 c. 48 Sch. 1 para. 9 U.K.]

Authorship of work

9. The question who was the author of an existing work is to be determined in accordance with the new copyright provisions for the purposes of the rights conferred by Division IV of Part II (moral rights), and for all other purposes is to be determined in accordance with the law in force at the time the work was made.

[cf. 1988 c. 48 Sch. 1 para. 10 U.K.]

First ownership of copyright

10. (1) The question who was the first owner of copyright in an existing work is to be determined in accordance with the law in force at the time the work was made.

(2) Where before commencement a person commissioned the making of a work in circumstances falling within—

(a) �: section 4(3) of the 1956 Act or paragraph (a) of the proviso to section 5(1) of the 1911 Act (engravings, photographs and portraits); or
(b) �: the proviso to section 12(4) of the 1956 Act (sound recordings),

those provisions apply to determine first ownership of copyright in any work made in pursuance of the commission after commencement.

[cf. 1988 c. 48 Sch. 1 para. 11 U.K.]

Employee works

Section 14(2) of this Ordinance does not apply to an existing work.
Commissioned works

Section 15 of this Ordinance does not apply to an existing work.

Duration of copyright in existing works

13. (1) The following provisions have effect with respect to the duration of copyright in existing works.

The question which provision applies to a work is to be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.

(2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act—

(a) �literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;

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(b) �: engravings in relation to which the period of 50 years mentioned in paragraph (a) of the proviso to section 3(4) of the 1956 Act (duration of copyright in works published after the death of the author) has begun to run;
(c) �: published photographs and photographs taken before 12 December 1972;
(d) �: published sound recordings and sound recordings made before 12 December 1972;
(e) �: published films.

(3) Copyright in anonymous or pseudonymous literary, dramatic, musical or artistic works (other than photographs) or films continues to subsist—

(a) �: if the work is published, until the date on which it would have expired in accordance with the 1956 Act; and
(b) �: if the work is unpublished, until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force or, if during that period the work is first made available to the public within the meaning of section 17(5) or 19(6) of this Ordinance (duration of copyright in works of unknown authorship), the date on which copyright expires in accordance with that provision,

unless, in any case, the identity of the author becomes known before that date, in which case section 17(2) or 19(2) of this Ordinance applies (general rule: life of the author plus 50 years).

(5): Copyright in an unpublished sound recordings made on or after 12 December 1972 continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force unless the recording is published before the end of that period in which case copyright in it continues until the end of the period of 50 years from the end of the calendar year in which the recording is published.
(6): Copyright in any other description of existing work continues to subsist until the date on which copyright in that description of work expires in accordance with sections 17 to 21 of this Ordinance. <* Note - Exp. X-Ref.: Sections 17, 18, 19, 20, 21 *>
(7): The above provisions do not apply to works subject to Government or Legislative Council copyright (see paragraphs 32to 34below).

[cf. 1988 c. 48 Sch. 1 para. 12 U.K.]

Acts infringing copyright

14. (1) The provisions of Divisions II and III of Part II as to the acts constituting an infringement of copyright apply only in relation to acts done after commencement; the provisions of

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the 1956 Act and the Copyright Ordinance continue to apply in relation to acts done before commencement.

(2): Section 25 of this Ordinance does not apply in relation to a copy of a sound recording or computer program acquired by any person before 10 May 1996 for the purpose of renting it to the public.
(3): Where any person has before 1 January 1995 incurred any significant expenditure or liability in connection with the rental of any copy of a work or subject-matter in a manner that at the time was lawful, or for the purpose of or with a view to such a rental at a time when it would have been lawful but for the commencement of section 10 of the WTO Ordinance, nothing in that Ordinance shall diminish or prejudice any right or interest arising from or in connection with such action that is subsisting and valuable immediately before the commencement of that section if that person pays to the person who by virtue of the commencement of that section becomes entitled to restrain the rental such equitable remuneration as the parties agree, or failing such agreement, as the Copyright Tribunal may determine.
(5): For the purposes of section 35of the Ordinance (meaning of “infringing copy“), if an article has been imported before commencement without infringing copyright under the law existing at the time of importation, the terms of any exclusive licence agreement relating to that article are to be disregarded and, for the avoidance of doubt, any possession or dealing in the article which takes place after commencement shall not infringe copyright within the terms of sections 31 and 118 to 133 of the Ordinance. <* Note -Exp. X-Ref.: Sections 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133 *>
(6): For the purposes of the application of sections 40(2) and 71(3) of this Ordinance (subsequent exploitation of things whose making was, by virtue of an earlier provision of the section, not an infringement of copyright) to things made before commencement, it is to be assumed that the new copyright provisions were in force at all material times.
(7): Section 63 of this Ordinance (articles for producing material in a particular typeface) applies where articles have been marketed as mentioned in subsection (1) of that section before commencement with the substitution for the period mentioned in subsection (2) of that section of the period of 25 years from the end of the calendar year in which the new copyright provisions come into force.
(8): Section 64 of this Ordinance (transfer of copies, adaptations, &c. of work in electronic form) does not apply in relation to a copy purchased before commencement.
(9): In section 74 of this Ordinance (reconstruction of buildings) the reference to the owner of the copyright in the drawings or plans is, in relation to buildings constructed before commencement, to the person who at the time of the construction was the owner of the copyright in the drawings or plans under the 1956 Act or the 1911 Act.

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[cf. 1988 c. 48 Sch. 1 para. 14 U.K.]

15. (1) Sections 66 and 75 of this Ordinance (anonymous or pseudonymous works: acts permitted on assumptions as to expiry of copyright or death of author) has effect in relation to existing works subject to the following provisions.

(2) Subsection (1)(b)(i) of section 66(assumption as to expiry of copyright) does not apply in relation to photographs.

(3): Subsection (1)(b)(ii) of the sections (assumption as to death of author) applies only—
(a) �: where paragraph 11(3)(b) applies (unpublished anonymous or pseudonymous works), after the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force; or
(b) �: where paragraph 11(6) applies (cases in which the duration of copyright is the same under the new copyright provisions as under the previous law).

[cf. 1988 c. 48 Sch. 1 para. 15 U.K.]

16. The following provisions of section 7 of the 1956 Act continue to apply in relation to existing works—

(a) �: subsection (6) (copying of unpublished works from manuscript or copy in library, museum or other institution);
(b) �: subsection (7) (publication of work containing material to which subsection (6) applies), except paragraph (a)(duty to give notice of intended publication);
(c) �: subsection (8) (subsequent broadcasting, performance, etc. of material published in accordance with subsection (7)),

and subsection (9)(d) (illustrations) continues to apply for the purposes of those provisions.

[cf. 1988 c. 48 Sch. 1 para. 16 U.K.]

17. Where in the case of a dramatic or musical work made before 1 July 1912, the right conferred by the 1911 Act did not include the sole right to perform the work in public, the acts restricted by the copyright are to be treated as not including—

(a) �: performing the work in public;
(b) �: broadcasting the work or including it in a cable programme service; or
(c) �: doing any of the above in relation to an adaptation of the work,

and where the right conferred by the 1911 Act consisted only of the sole right to perform the work in public, the acts restricted by the copyright are to be treated as consisting only of those acts.

[cf. 1988 c. 48 Sch. 1 para. 17 U.K.]

18. Where a work made before 1 July 1912 consists of an essay, article or portion forming part of and first published in a review, magazine or their periodical or work of a like nature, the copyright is subject to any right of publishing the essay, article, or portion in a separate form to which the author was entitled at the commencement of the 1911 Act.

[cf. 1988 c. 48 Sch. 1 para. 18 U.K.]

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Enforcement of copyright in registrable design
�

19. (1) Where section 10 of the 1956 Act (effect of industrial application of design corresponding to artistic work) applied in relation to an artistic work at any time before 1 August 1989, section 87(3) of this Ordinance applies and the period of 15 years mentioned there is to be calculated from the end of the calendar year in which the articles were first marketed.

(2) Where section 10 of the 1956 Act (effect of industrial application of design corresponding to artistic work) applied in relation to an artistic work at any time on or after 1 August 1989 and before commencement, section 87(3) of this Ordinance applies with the substitution for the period of 15 years mentioned there of the period of 25 years and the period of 25 years is to be calculated from the end of the calendar year in which the articles were first marketed.

(3) Except as provided in subparagraphs (1) and (2), section 87 of this Ordinance applies only

where	articles	are	marketed	as	mentioned	in	section 87(1)(b)	of	this	Ordinance	after
commencement.
							[cf. 1988 c. 48 Sch. 1 para. 20 U.K.]

Abolition of statutory recording licence

20. Section 8 of the 1956 Act (statutory licence to copy records sold by retail) and the Copyright Royalty System (Records) Regulations (App. I, p. AL1) continue to apply where notice under subsection (1)(b) of section 8 was given before the repeal of that section by this Ordinance, but only in respect of the making of records—

(a) �: within one year of the repeal coming into force; and
(b) �: up to the number stated in the notice as intended to be sold. [cf. 1988 c. 48 Sch. 1 para. 21 U.K.]

Moral rights

21. (1) No act done before commencement is actionable by virtue of any provision of Division IV of Part II (moral rights).

(2) Section 43 of the 1956 Act (false attribution of authorship) continues to apply in relation to acts done before commencement.

[cf. 1988 c. 48 Sch. 1 para. 22 U.K.]

22. (1) The following provisions have effect with respect to the rights conferred by—

(a) �: section 89 of this Ordinance (right to be identified as author or director); and
(b) �: section 92 of this Ordinance (right to object to derogatory treatment of work).
(2): The rights do not apply—
(a) �: in relation to a literary, dramatic, musical and artistic work of which the author died before commencement; or
(b) �: in relation to a film made before commencement.

(3) The rights in relation to an existing literary, dramatic, musical or artistic work do not apply—

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(a) �: where copyright first vested in the author, to anything which by virtue of an assignment of copyright made or licence granted before commencement may be done without infringing copyright;
(b) �: where copyright first vested in a person other than the author, to anything done by or with the licence of the copyright owner.

(4) The rights do not apply to anything done in relation to a record made in pursuance of section 8 of the 1956 Act (statutory recording licence).

[cf. 1988 c. 48 Sch. 1 para. 23 U.K.]

Certification of rental to the public of copies of computer programs or sound recordings

The repeal by this Ordinance of sections 41A (special provisions as to rental of computer programs and sound recordings) and 41B (application to settle royalty or other sum payable for rental of computer programs or sound recordings) of the Copyright Ordinance does not affect the operation of those sections in relation to any certification made by the Secretary for Trade and Industry under section 41A(4) of the Copyright Ordinance before commencement.
Assignments and licences

(1) Any document made or event occurring before commencement which had any operation—

affecting the ownership of the copyright in an existing work; or
creating, transferring or terminating an interest, right or licence in respect of the copyright in an existing work,

has the corresponding operation in relation to copyright in the work under this Ordinance.

(2) Expressions used in such a document are to be construed in accordance with their effect immediately before commencement.

[cf. 1988 c. 48 Sch. 1 para. 25 U.K.]

25. (1) Section 102(1) of this Ordinance (assignment of future copyright: statutory vesting of legal interest on copyright coming into existence) does not apply in relation to an agreement made before 12 December 1972.

(2) The repeal by this Ordinance of section 37(2) of the 1956 Act (assignment of future copyright: devolution of right where assignee dies before copyright comes into existence) does not affect the operation of that provision in relation to an agreement made before commencement.

[cf. 1988 c. 48 Sch. 1 para. 26 U.K.]

26. (1) Where the author of a literary, dramatic, musical or artistic work was the first owner of the copyright in it, no assignment of the copyright and no grant of any interest in it, made by him (otherwise than by will) on or after 1 July 1912 and before 12 December 1972, shall operate to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of 25 years from the death of the author.

(2) The reversionary interest in the copyright expectant on the termination of that period may after commencement be assigned by the author during his life but in the absence of any assignment, on his death, devolves on his legal personal representatives as part of his estate.

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(3): Nothing in this paragraph affects—
(a) �: an assignment of the reversionary interest by a person to whom it has been assigned;
(b) �: an assignment of the reversionary interest after the death of the author by his personal representatives or any person becoming entitled to it; or
(c) �: any assignment of the copyright after the reversionary interest has fallen in.

(4) Nothing in this paragraph applies to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

(5): In subparagraph (4) “collective work” means—
(a) �: any encyclopaedia, dictionary, yearbook, or similar work;
(b) �: a newspaper, review, magazine, or similar periodical; and
(c) �: any work written in distinct parts by different authors, or in which works or parts of works of different authors are incorporated.

[cf. 1988 c. 48 Sch. 1 para. 27 U.K.]

27. (1) This paragraph applies where copyright subsists in a literary, dramatic, musical or artistic work made before 1 July 1912 in relation to which the author, before the commencement of the 1911 Act, made such an assignment or grant as was mentioned in paragraph (a) of the proviso to section 24(1) of that Act (assignment or grant of copyright or performing right for full term of the right under the previous law).

(2): If before commencement any event has occurred or notice has been given which by virtue of paragraph 38 of the Seventh Schedule to the 1956 Act had any operation in relation to copyright in the work under that Act, the event or notice has the corresponding operation in relation to copyright under this Ordinance.
(3): Any right which immediately before commencement would by virtue of paragraph 38(3) of that Schedule have been exercisable in relation to the work, or copyright in it, is exercisable in relation to the work or copyright in it under this Ordinance.

[cf. 1988 c. 48 Sch. 1 para. 28 U.K.]

28. Section 103(2) of this Ordinance (rights of exclusive licensee against successors in title of person granting licence) does not apply in relation to an exclusive licence granted before commencement.

[cf. 1988 c. 48 Sch. 1 para. 29 U.K.]

Bequests

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29. (1) Section 104 of this Ordinance (copyright to pass under will with original document or other material thing embodying unpublished work)—

(a) �: does not apply where the testator died before 12 December 1972; and
(b) �: where the testator died on or after that date and before commencement, applies only in relation to an original document embodying a work.

(2) In the case of an author who died before 12 December 1972, the ownership after his death of a manuscript of his, where such ownership has been acquired under a testamentary disposition made by him and the manuscript is of a work which has not been published or performed in public, is prima facie proof of the copyright being with the owner of the manuscript.

[cf. 1988 c. 48 Sch. 1 para. 30 U.K.]

Remedies for infringement

30. (1) Sections 107 and 108 of this Ordinance (remedies for infringement) apply only in relation to an infringement of copyright committed after commencement; section 17 of the 1956 Act continues to apply in relation to infringements committed before commencement.

(2): Section 109 of this Ordinance (delivery up of infringing copies) applies to infringing copies and other articles made before or after commencement; section 18 of the 1956 Act, and section 7 of the 1911 Act, (conversion damages, etc.), do not apply after commencement except for the purposes of proceedings begun before commencement.
(3): Sections 112 and 113 of this Ordinance (rights and remedies of exclusive licensee) apply where sections 107 to 109 of this Ordinance apply; section 19 of the 1956 Act continues to apply where section 17 or 18 of that Act applies. <* Note - Exp. X-Ref.: Sections 107, 108, 109 *>
(4): Sections 115 to 117 of this Ordinance (presumptions) apply only in proceedings brought by virtue of this Ordinance; section 20 of the 1956 Act continues to apply in proceedings brought by virtue of that Act. <* Note - Exp. X-Ref.: Sections 115, 116 , 117 *>

[cf. 1988 c. 48 Sch. 1 para. 31 U.K.]

Sections 112 and 113 of this Ordinance (rights and remedies of exclusive licensee) do not apply to a licence granted before 12 December 1972.
[cf. 1988 c. 48 Sch. 1 para. 32 U.K.]

The provisions of section 118 of this Ordinance (criminal liability for making or dealing with infringing articles, etc.) apply only in relation to acts done after commencement; section 21 of the 1956 Act (penalties and summary proceedings in respect of dealings which infringe copyright) and sections 5 and 5A of the Copyright Ordinance (offences in connection with infringing copies and making infringing copies outside Hong Kong, etc.) continue to apply in relation to acts done before commencement.

[cf. 1988 c. 48 Sch. 1 para. 33 U.K.]

Ships, aircraft and hovercraft

33. Section 179 of this Ordinance (ships, aircraft and hovercraft registered in Hong Kong) does not apply in relation to anything done before commencement.

[cf. 1988 c. 48 Sch. 1 para. 39 U.K.]

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Government copyright
�

34. (1) Section 182 of this Ordinance (general provisions as to Government copyright) applies to an existing work if—

(b) �: it was first published, before commencement, by or under such direction or control, in Hong Kong,

and the work is not one to which section 183, 184 or 185 of this Ordinance applies (copyright in Ordinances, Bills and Legislative Council copyright: see paragraphs 36 and 37 below).

(2) Section 182(1)(b) of this Ordinance (first ownership of copyright) has effect subject to any agreement entered into before commencement under section 39(6) of the 1956 Act.

[cf. 1988 c. 48 Sch. 1 para. 40 U.K.]

35. (1) The following provisions have effect with respect to the duration of copyright in existing works to which section 182 of this Ordinance (Government copyright) applies.

(2): Copyright in the following descriptions of work continues to subsist until the date on which it would have expired in accordance with the 1956 Act—

(3): Copyright in unpublished literary, dramatic or musical works or films continues to subsist until—

whichever is the later.

(4) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) �unpublished engravings;

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(b) �unpublished photographs taken on or after 12 December 1972.

(5) Copyright in a sound recording not falling within subparagraph (2) above continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, unless the recording is published before the end of that period, in which case copyright expires 50 years from the end of the calendar year in which it is published.

[cf. 1988 c. 48 Sch. 1 para. 41 U.K.]

36. Section 183 of this Ordinance (copyright in Ordinance) applies to existing Ordinances.

[cf. 1988 c. 48 Sch. 1 para. 42 U.K.]

Legislative Council copyright

37. (1) Section 184 of this Ordinance (general provisions as to Legislative Council copyright) applies to existing unpublished literary, dramatic, musical or artistic works, but does not otherwise apply to existing works.

(2) Section 185 of this Ordinance (copyright in Bills) does not apply to a Bill which was presented to the Legislative Council and published before commencement.

[cf. 1988 c. 48 Sch. 1 para. 43 U.K.]

38. (1) Any work in which immediately before commencement copyright subsisted by virtue of section 33 of the 1956 Act is deemed to satisfy the requirements of section 188(1) of this Ordinance.

(2) Copyright in any such work which is unpublished continues to subsist until the date on which it would have expired in accordance with the 1956 Act, or the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, whichever is the earlier.

[cf. 1988 c. 48 Sch. 1 para. 44 U.K.]

Meaning of “publication”

39. Section 196(3) of this Ordinance (construction of building treated as equivalent to publication) applies only where the construction of the building began after commencement.

[cf. 1988 c. 48 Sch. 1 para. 45 U.K.]

Meaning of “unauthorized”

40. For the purposes of the application of the definition in section 198 of this Ordinance (minor definitions) of the expression “unauthorized” in relation to things done before commencement—

(a) �paragraph (a) applies in relation to things done before 12 December 1972 as if the reference to the licence of the copyright owner were a reference to his consent or acquiescence;

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(b) �: paragraph (b) applies with the substitution for the words from “or, in a case” to the end of the words “or any person lawfully claiming under him”; and
(c) �: paragraph (c) is disregarded.

[cf. 1988 c. 48 Sch. 1 para. 46 U.K.]

Saving of subsidiary legislation

Until rules are made by the Chief Justice under section 174 of this Ordinance, the Copyright Tribunal Rules (App. I, p. BF1)^*in force immediately before commencement, so far as they are not inconsistent with this Ordinance, continue in force and have effect for all purposes as if made under this Ordinance, subject to such necessary adaptations and modifications as may be necessary for their having effect under this Ordinance.
Until rules of court under the High Court Ordinance (Cap 4) are made for the purposes of sections 144 and 271 of this Ordinance, the Copyright (Border Measures) Rules (L.N. 482 of 1996), so far as they are not inconsistent with this Ordinance, continue in force and have effect as if made for the purposes of those sections subject to such necessary adaptations and modifications as may be necessary for those rules to have effect under the appropriate Part of this Ordinance. (Amended 25 of 1998 s. 2)
Until regulations are made by the Secretary for Trade and Industry under section 46 of this Ordinance, the Copyright (Libraries) Regulations (App. I, p. AJ1) as amended and in force immediately before commencement, so far as they are not inconsistent with this Ordinance, continue in force and have effect for all purposes as if made under this Ordinance, subject to such necessary adaptations and modifications as may be necessary for their having effect under this Ordinance.

Schedule 3 RIGHTS IN PERFORMANCE: TRANSITIONAL PROVISIONS AND SAVINGS

[sections 233 & 237]

RIGHTS IN PERFORMANCE: TRANSITIONAL PROVISIONS AND SAVINGS

Introductory

1. (1) In this Schedule—

“the Copyright Ordinance” means the Copyright Ordinance (Cap 39) in force immediately before the commencement of Part III of this Ordinance;

“the new performance rights provisions” means the provisions of this Ordinance relating to rights in performances, that is, Part III (including this Schedule and Schedule 1), Schedules 4 and 5 and so far as they make amendments or repeals consequential on the provisions of Part III.

(2): References in this Schedule to “commencement”, without more, are to the date on which the new performance rights provisions come into force.
(3): References in this Schedule to “existing performances” are to performances given before commencement; and for this purpose a performance which extended over a period is to be taken to have been given when the performance was completed.

* Please also see L.N. 5 of 1997.

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2. In relation to the Copyright Ordinance, “performance” means—
�

(a)	a dramatic performance;
(b)	a musical performance; or
(c)	a reading or recitation of a literary work,

that is, or so far as it is, an acoustic presentation of an unfixed or live performance given by one or more individual persons.

General principles: continuity of the law

The new performance rights provisions apply in relation to performances given before commencement as they apply in relation to performances given after commencement, subject to any express provision to the contrary.
(1) The provisions of this paragraph have effect for securing the continuity of the law so far as the new performance rights provisions re-enact (with or without modification) earlier provisions.

(2): A reference in an enactment, instrument or other document to performer’s rights, or to a performance in which rights subsists, which apart from this Ordinance would be construed as referring to performers’ rights under the Copyright Ordinance is to be construed, so far as may be required for continuing its effect, as being, or as the case may require, including, a reference to performers’ rights under this Ordinance or to performances in which rights subsist under this Ordinance.
(3): Anything done (including subsidiary legislation made), or having effect as done, under or for the purposes of a provision repealed by this Ordinance has effect as if done under or for the purposes of the corresponding provision of the new performance rights provisions.
(4): References (expressed or implied) in this Ordinance or any other enactment, instrument or document to any of the new performance rights provisions are, so far as the context permits, to be construed as including, in relation to times, circumstances and purposes before commencement, a reference to corresponding earlier provisions.
(5): A reference (expressed or implied) in an enactment, instrument or other document to a provision repealed by this Ordinance is to be construed, so far as may be required for continuing its effect, as a reference to the corresponding provision of this Ordinance.
(6): The provisions of this paragraph have effect subject to any specific transitional provision or saving and to any express amendment made by this Ordinance.

Subsistence of rights in performances

5. (1) The rights conferred by Part III subsist in an existing performance after commencement if—

(a) �: the performance was a qualifying performance within the meaning of the Copyright Ordinance or would be a qualifying performance had it been given after commencement; and

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earlier than 50 years before the first day of the calendar year in which the new performance rights provisions commence.

(2) The rights conferred by Part III in an existing performance continue to subsist until the date on which those rights in that performance expire in accordance with section 214 of this Ordinance.

Contrary rights

Where any person has before commencement incurred any significant expenditure or liability in connection with the fixation of a performance or reproduction of a fixation in a manner that at the time was lawful, or for the purpose of or with a view to the fixation of a performance or reproduction of a fixation at a time when it would have been lawful but for the commencement, nothing in this Ordinance diminishes or prejudices any right or interest arising from or in connection with such action that is subsisting and valuable immediately before the commencement unless the person who by virtue of the commencement becomes entitled to restrain the fixation or reproduction of the performances agrees to pay such compensation as the parties agree, or failing such agreement, as the Copyright Tribunal may determine.
Acts infringing rights in performances

(1) The provisions of Part III as to the acts constituting an infringement of the rights conferred by that Part apply only in relation to acts done after commencement; the provisions of the Copyright Ordinance continue to apply in relation to acts done on or after 20 December 1996 and before commencement.

(2) For the purposes of section 229 of this Ordinance (meaning of “infringing fixation“) the question whether the fixation constituted an infringement of performers’ rights, or would have done if the performance had been given in Hong Kong, is to be determined, in relation to a performance given on or after 20 December 1996 and before commencement, by reference to the Copyright Ordinance.

Remedies for infringement

Section 228 of this Ordinance (delivery up of infringing fixations) applies to infringing fixations made before and after commencement; section 32 of the Copyright Ordinance does not apply after commencement except for the purposes of proceedings begun before commencement.
Ships, aircraft and hovercraft

Section 235 of this Ordinance (ships, aircraft and hovercraft registered in Hong Kong) does not apply in relation to anything done before commencement.

Schedule 4 CONSEQUENTIAL AMENDMENTS

1.-4. (Omitted as spent)

Director of Intellectual Property (Establishment) Ordinance

5. Schedule amended

Schedule 2 to the Director of Intellectual Property (Establishment) Ordinance (Cap 412) is amended by adding—

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6. (Omitted as spent)

Schedule 5 REPEALS

Enactment

[section 281 & Schedules 2 & 3]

Extent of repeal The whole Ordinance The whole Regulations

All the Orders

In so far as the Order forms part of the law of Hong Kong In so far as the Order forms part of the law of Hong Kong In so far as the Order forms part of the law of Hong Kong The whole Order

The whole Regulation

Гонконг, Китай

HK001

Copyright Ordinance (Chapter 528) (consolidated version of July 30, 1999)

COPYRIGHT ORDINANCE

Long title

PRELIMINARY

Section 1 Short title, commencement and interpretation

PART II COPYRIGHT

DIVISION I SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT

Section 3 Rights subsisting in copyright works

Section 4 Literary, dramatic and musical works

Section 5�Artistic works�

Section 6�Sound recordings�

Section 8�Broadcasts�

Section 9�Cable programmes�

Section 10�Published editions�

Section 11�Authorship of work�

Section 12�Works of joint authorship�

Section 13�First ownership of copyright�

Section 15�Commissioned works�

Section 16�Government copyright, etc.�

Section 17 Duration of copyright in literary, dramatic, musical or artistic works

Section 18�Duration of copyright in sound recordings�

Section 19�Duration of copyright in films�

Section 20�Duration of copyright in broadcasts and cable programmes�

Section 21�Duration of copyright in typographical arrangement of published editions�

Section 23�Infringement of copyright by copying�

Section 24�Infringement by issue of copies to the public�

Section 25�Infringement by rental of work to the public�

Section 26�Infringement by making available of copies to the public�

Section 27�Infringement by performance, playing or showing of work in public�

Section 32 Secondary infringement: providing means for making infringing copies

Section 35 Meaning of “infringing copy”

Section 41�Things done for purposes of instruction or examination�

Section 46�Libraries and archives: introductory�

Section 54�Legislative Council and judicial proceedings�

DIVISION IV MORAL RIGHTS

Section 92�Right to object to derogatory treatment of work�

Section 109�Order for delivery up�

Section 111�Order as to disposal of infringing copy or other article�

Section 118�Criminal liability for making or dealing with infringing articles, etc.�

Section 120A Time limit for prosecutions

Section 122�Powers of investigating Officers�

Section 131�Seized articles, etc. liable to forfeiture�

DIVISION VII PROCEEDINGS RELATING TO IMPORTATION OF INFRINGING ARTICLES

Section 140�Disclosure of information�

DIVISION VIII COPYRIGHT LICENSING

Section 146�Registrar of Copyright Licensing Bodies�

Section 147�Maintenance of register and inspection�

Section 162�Reference to Tribunal of proposed licence�

Section 169 The Copyright Tribunal

DIVISION IX THE COPYRIGHT TRIBUNAL

DIVISION X QUALIFICATION FOR COPYRIGHT PROTECTION

DIVISION XI MISCELLANEOUS AND GENERAL

Section 185�Copyright in bills�

Section 188 Copyright vesting in international organizations

PART III�RIGHTS IN PERFORMANCES�

DIVISION I THE RIGHTS, INFRINGEMENT OF THE RIGHTS AND REMEDIES FOR INFRINGEMENT

Section 228�Order for delivery up�

Section 267�Disclosure of information�

PART IV�TECHNOLOGICAL MEASURES AND GENERAL�

protection to Hong Kong broadcasts, cable programmes and encrypted transmissions

Section 281 (Omitted as spent)

Section 5
�Artistic works
�

Section 6
�Sound recordings
�

Section 8
�Broadcasts
�

Section 9
�Cable programmes
�

Section 10
�Published editions
�

Section 11
�Authorship of work
�

Section 12
�Works of joint authorship
�

Section 13
�First ownership of copyright
�

Section 15
�Commissioned works
�

Section 16
�Government copyright, etc.
�

Section 18
�Duration of copyright in sound recordings
�

Section 19
�Duration of copyright in films
�

Section 20
�Duration of copyright in broadcasts and cable programmes
�

Section 21
�Duration of copyright in typographical arrangement of published editions
�

Section 23
�Infringement of copyright by copying
�

Section 24
�Infringement by issue of copies to the public
�

Section 25
�Infringement by rental of work to the public
�

Section 26
�Infringement by making available of copies to the public
�

Section 27
�Infringement by performance, playing or showing of work in public
�

Section 41
�Things done for purposes of instruction or examination
�

Section 46
�Libraries and archives: introductory
�

Section 54
�Legislative Council and judicial proceedings
�

Section 92
�Right to object to derogatory treatment of work
�

Section 109
�Order for delivery up
�

Section 111
�Order as to disposal of infringing copy or other article
�

Section 118
�Criminal liability for making or dealing with infringing articles, etc.
�

Section 122
�Powers of investigating Officers
�

Section 131
�Seized articles, etc. liable to forfeiture
�

Section 140
�Disclosure of information
�

Section 146
�Registrar of Copyright Licensing Bodies
�

Section 147
�Maintenance of register and inspection
�

Section 162
�Reference to Tribunal of proposed licence
�

Section 185
�Copyright in bills
�

PART III
�RIGHTS IN PERFORMANCES
�

Section 228
�Order for delivery up
�

Section 267
�Disclosure of information
�

PART IV
�TECHNOLOGICAL MEASURES AND GENERAL
�