Hong Kong's Copyright Law Changes Explained

by Mary Swire, LawAndTax-News.com, Hong Kong

20 November 2009

Refined proposals for more effective copyright protection in the digital environment in Hong Kong have struck a reasonable balance among the interests of copyright owners, users and online service providers, Permanent Secretary for Commerce and Economic Development Yvonne Choi has told the territory's Legislative Council.

"In formulating the proposals to better protect copyright works disseminated online, the government has strived to balance competing interests, including the need to provide an environment conducive to Hong Kong's development as an Internet service hub, as well as the protection of personal data privacy and free flow of information," she said.

According to Choi, the views of the industry as well as the latest legal developments in the area of copyright protection in other countries have been taken into account in the proposed new legislation, which includes:

• recognizing copyright owners' right to communicate their works through any mode of electronic transmission, with related criminal sanctions against those who initiate unauthorized communication of copyright works to the public in the course of business conducted for profit or where it is made to such an extent as to affect prejudicially the copyright owners;
• introducing a statutory regime to prescribe the circumstances under which online service providers' liability for copyright infringement will be limited;
• introducing a copyright exception for temporary reproduction of copyright works by online service providers, which is technically required for (or enables) the transmission process to function efficiently;
• prescribing in law additional factors to help the courts consider the award of additional damages, in recognition of the difficulties encountered by copyright owners in proving the extent of actual loss, particularly in the digital environment; and
• introducing a media shifting exception so the owner of a non-infringing copy of a sound recording may make one copy of that recording in each device they lawfully own for their personal and domestic use.

Hong Kong's government has, however, decided against introducing an alternative infringer identity disclosure mechanism that is not subject to scrutiny by the courts and introducing statutory damages for copyright infringement actions involving the Internet. The government also does not support new criminal liability pertaining to unauthorized downloading and peer-to-peer file-sharing activities.

The government intends to table the copyright law reforms in the second half of next year following further consultations with the industry and the public.

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