Legal Protection of Digital Property
PhD(Computer Science) LLM(Intellectual Property) Department of Computer Science
Legal Protection of Digital Property
Copyright By PowCoder代写 加微信 powcoder
• intellectualpropertylaws(IPlaws) – copyright
– Trademark
NB. Trademark will not be covered in this course.
• criminallaws
NB. This course focuses on HK law, but discussions relevant to all other common law countries that share similar IP law principles eg. UK, Australia, , Singapore, South Africa, India, Canada, US (with some differences).
Basic Legal Concepts • CriminallawvsCivillaw
» usually more serious wrongs affecting the interests of society as a whole
» the prosecutor (usually the government) prosecutes the accused
» accused may be acquitted or convicted (ie. found guilty)
» sentence is punitive
» proof by prosecution must be “beyond reasonable doubt” ie. virtually certain that the accused has committed the crime
» generally governed by ordinances eg. Theft Ordinance, Crimes Ordinance
– civil wrongs
» wrongs primarily affecting the interests of individual legal persons
» the plaintiff sues the defendant
» result may be judgment for the plaintiff or
judgment for the defendant
» award is compensatory (with a few exceptions)
» proof by plaintiff is on “a balance of probabilities” ie. > 50% likelihood that defendant has committed the civil wrong
» civil law = all the law that is not criminal law eg. tort, contract, trust, Copyright Ordinance
NB. A wrong can be both a civil wrong and a crime eg. selling pirated DVDs.
NB. Criminal prosecution is by govt
» once started, a criminal proceeding can only be discontinued by govt
» if burden of proof on accused (eg. raising a defence), standard is “proof on a balance of probabilities”
NB. An employer is vicariously liable for
civil wrongs committed by his employee in the course of employment (employer’s “vicarious liability”).
NB. Employer’s vicarious liability does not apply to criminal law.
• Meaning of “common law”
– permits “judge-made” law ie. in addition to legislation (written law), the following is also part of law
» judicial reasoning behind a decision
» judicial interpretation of legislation
– doctrine of binding judicial precedent (stare decisis) ie. decisions of higher courts binding on lower courts
NB. In HK, highest court is Court of Final Appeal, followed by Court of Appeal, Court of First Instance, District Court, Magistrates’ Courts.
NB. Citing judicial decisions in court is part of common law practice.
NB. Mainland China is not a common law jurisdiction (but “continental law” or “civil law” jurisdiction).
• propertyrighttoexploitone’sown copyright work and stop others from copying or exploiting the work without permission
• governedbytheCopyrightOrdinance (Cap 528) enacted on 26 June 1997 with effect from 27 June 1997
NB. In the Mainland, copyright is protected under the PRC Copyright Law (中华人民共和国著作权法). Software is specifically protected under the Regulations on the Protection of Computer Software (计算 机软件保护条例).
Basics of HK Copyright Law
1. Copyright=intangiblepropertyinthe work as distinct from the tangible property in the material containing the work
E1: X writes a letter and sends it to Y. What rights does Y have in relation to the letter?
2. Copyright subsists only in nine categories of work specified in the Copyright Ordinance, s.2(1):
(1) literary works
(2) dramatic works
(3) musical works
(4) artistic works
(5) sound recordings
(7) broadcasts
(8) cable programmes
(9) typographical arrangement of published editions (ie. layout of words or symbols on the printed page)
NB. These works are defined in ss.4-10. Computer programs (ie. program codes) and their preparatory design materials (eg. design notes, program specifications) are regarded as literary works: CO, s.4(1)(b), (c).
NB. Compilation (or “database”) of data or other material is protected as literary work if its selection or arrangement of contents constitutes an intellectual creation: CO, s.4(1)(a). This is regardless of whether the contents themselves enjoy copyright.
NB. Copying the selection/arrangement of contents of a database without permission is copyright infringement.
3. Copyright only protects expressions of an idea but not the idea itself (“idea/expression dichotomy”)
– TRIPS (Agreement on Trade-Related Aspects of Intellectual Property Rights), Art 9.2 (*RR = Recommended Reading)
– not found in the Copyright Ordinance or any UK copyright provisions but has been applied by the HK and UK courts throughout the history of copyright
NB. Idea/expression dichotomy is closely related to “skill and labour” doctrine for copyright protection (see later). If an “idea” contains more details, it means author has put in more skill and labour, hence more likely to be an “expression”.
4. Copyright does not subsist in a literary, dramatic or musicaI work until it is recorded in writing or otherwise (“fixation” requirement): Copyright Ordinance, s.4(2)
NB. No such requirement in the Mainland: see, PRC Copyright Law, Art 4(2).
5. Literary, dramatic, musical and artistic works must be “original” to attract copyright (“originality” requirement): Copyright Ordinance, s.2(1)(a)
– 2 conditions:
(1) originated from the author (ie. not copied from another work): University of London Press v University Tutorial Press [1916] 2 Ch 601. (*RR)
(2) has involved the author’s skill and labour: Ladbroke (Football) v [1964] 1 WLR 273.
NB. No hard and fast rules for sufficient “skill and labour”, always a question of fact and degree in each case. Generally, titles of books, names, word trademarks and the like do not contain sufficient skill and labour.
NB. “Originality” “creativity”. But if the work is small, it has to possess some creativity to show sufficient skill and labour.
NB. A work may still be original even though some parts of it may be infringing copyright of others.
NB. Standard for originality varies from country to country eg. German standard requires creativity and thus higher than that of UK and HK. But international trend now is towards convergence.
6. Copyright arises automatically and requires no registration or any formalities
NB. Stipulated in the for the Protection of Literary and Artistic Works, Art 5(2). The Convention applies to HK as a part of the PRC and also because of TRIPS.
7. Copyright prevents copying but not use of the copyright work or any independent creation (even if the second work is identical with the first one)
NB. Different from patent which also protects against use of the invention and any independent making of the same invention (more later).
8. A “work” may consist of several copyright works belonging to different owners
E1: X collects short stories written by S, T, Y and Z and compiles them into a book. Copyright owners?
E2: Sound recording of a popular song: X composes the music, Y writes the lyrics, Z sings the song, and P produces the recording.
9. Copyright may be split up into different rights which may be separately assigned or licensed
– assignment: the assignee becomes the new copyright owner.
– licence: the licensee is permitted to perform acts in accordance with the terms of the licence, but does not own the copyright.
NB. Licence may be exclusive (see CO, s.103) or non-exclusive.
NB. Exclusive licensee can sue for infringement but must include copyright owner as a party to the litigation: CO, ss.112, 113.
• examplesofsplittingupcopyright:
– distribution right in HK to X, distribution right in PRC to Y
– Chinese translation right to Z, German translation right to W
– paperback right to V, hardback right to S
10. Copyright law is territorial (NB. Same as most other laws in HK.)
– copyright law of each country only applies within that country unless there are bilateral agreements to the contrary
NB. Because of the and TRIPS, differences between the copyright laws of most countries are diminishing.
Recommended Reading
• TRIPSArts9-14.
• University of London Press v University Tutorial Press [1916] 2 Ch 601
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