Legal Protection of Digital Property
PhD(Computer Science) LLM(Intellectual Property) Department of Computer Science
1. Importing or Exporting Infringing Copies: s.30
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• importingintoorexportingfromHK, otherwise than for his own private and domestic use, a copy of a work knowing, or having reason to believe, that it is an infringing copy (NB. Presumably covers only tangible articles: cf. s.198)
NB. Defence of “no knowledge” for parallel imports: s.36.
E1: X is the copyright owner of a book and has sold the book in US and HK at different retail prices. Y has bought 1,000 copies of the book in US and sold them in HK at a cheaper price than their HK retail price. Any infringement?
E2: As in E1. But X has appointed W to be the exclusive supplier of the book in HK.
2. Possessing or Dealing with Infringing Copies: s.31
• possessingforthepurposeoforinthe course of any trade or business;
• selling,lettingforhire,offeringor exposing for sale or hire;
• exhibitinginpublicordistributingforthe purpose of or in the course of any trade or business;
• distributing(otherwisethanforthe purpose of or in the course of any trade or business) to such an extent as to affect prejudicially the copyright owner;
a copy of a work which is, and which he knows or has reason to believe to be, an infringing copy of the work
NB. Defence of “no knowledge” for parallel imports: s.36.
NB. “Business” includes a profession and non-profit making business: CO, s.198.
NB. Items on display ≠ offer for sale but exhibiting in public.
NB. Distribution of copies overlaps to a certain extent with issue of copies.
NB. Making a copy available on the Internet without licence allowing others to download amounts to distribution of infringing copies if there is evidence that users have downloaded the work (may incur criminal liability even for non- business purpose under s.118(1)(g)): Ming v HKSAR [2007] 3 HKC 255 (CFA). (more later)
3. Providing Means for Making Infringing Copies: s.32
• importingorexporting;
• possessingforthepurposeoforinthe course of any trade or business;
• selling,lettingforhire,offeringor exposing for sale or hire;
an article specifically designed or adapted for making copies of the work in question, knowing or having reason to believe that it is to be used to make infringing copies
NB. Secondary infringements discussed above may also constitute criminal offences under ss.118(1), (2A), (2B), (4). But note the difference in wording between s.31 and ss.118 (1)(d)-(g), 118(10).
E1: X is the owner of a computer shop. He displays in his store copies of a CD which contains several dozen popular software with a price tag of $200. Any infringement?
E2: As in E1. Y is the manufacturer of those copies and Z is the manufacturer of the machine used by Y to make those copies.
Exceptions to Infringement of Software Copyright
1. Fair dealing
– for research or private study: s.38
– for criticism, review or news reporting with acknowledgment: s.39
– no definition for “fair dealing”, but factors to consider include (“the 4 Factors”):
» purpose and nature of the dealing
» nature of the plaintiff’s work
» amount and substantiality of the portion dealt with in relation to the plaintiff’s work as a whole
» effect of the dealing on the potential market for or value of the plaintiff’s work: s.38(3)
NB. Section 37(3): in determining whether an act may be permitted, “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”.
– other factors eg. improper means used? plaintiff’s economic interest jeopardised? plaintiff’s work not disclosed prior to copying?
– essentially a matter of degree and impression: Hubbard v Vosper [1972] 2 QB 84
E1: X places in a newsgroup a program taken from a textbook written by a CS professor and makes fun of its programming style. Is there a cause for action? Is there a defence?
2. Education
– anything done for purposes of examination by way of setting questions, communicating questions to candidates or answering questions: s.41(3)
– performing a literary, dramatic or musical work in school activities attended mainly by persons directly connected with the activities of the school (including parents and guardians): ss.43(1) (NB. See also s.43(2))
– s.41A (added by Copyright (Amendment) Ordinance 2007):
» fair dealing by a teacher or pupil for purposes of giving or receiving instruction in a specified course of study provided by an educational establishment: s.41A(1)
» placing copies on school’s Intranet with restricted access for purposes of giving or receiving instruction in a specified course of study and not storing them in the network for longer than is necessary (max 12 months): s.41A(5)
» all subject to the 4 Factors
3. Other permitted acts
– special exemptions for lawful users of computer programs: ss.60, 61
– Internet browsing: s.65
– defences to civil actions under ss.30 and 31 (secondary infringement): s.36
– copying by librarians or archivists: ss.46- 53
– acts done for public administration (eg. judicial or legislative council proceedings): ss.54, 54A (fair dealing), 54B, 55-59
– playing of sound broadcasts inside vehicles: s.81A
Civil Remedies: s.107
– generally compensatory: plaintiff put back in the same position as if no infringement had been committed
– additional damages may be awarded for flagrant infringements: s.108(2)
• injunction
– orders defendant to stop the infringing act
• accountofprofits
– defendant accounts to plaintiff for profits made from infringing the latter’s copyright
NB. Plaintiff can ask for damages or account of profits, but not both.
• deliveryup
– defendant delivers up infringing copies or other articles for disposal as ordered by the court
Criminal Sanctions: ss.118- 120
• secondaryinfringementsdiscussed above may also constitute criminal offences under s.118
• making outside HK for export to HK, otherwise than for his private and domestic use, any copy which he knows would be infringing if made in HK: s.120(1)
– making outside HK an article specifically designed or adapted for making infringing copies of a particular work, knowing or having reasons to believe that it is or intended to be used in HK for making an infringing copy of the work for sale or hire or for use for the purpose of or in the course of any trade or business: s.120(2)
NB. Copyright offences in HK are handled by the Customs & Excise Dept, not the police.
Copyright on Internet: HK Case Law on P2P Using BT
• BT(BitTorrent):whiledownloadingafile, each user makes his downloaded portion available for download by others
• 1st user provides a full copy of the file (“seed”) and creates a .torrent file on the Internet containing, among other things
– info about the file
– URL of a “tracker” (a server keeping track of the portion that each user has copied)
• eachuserdownloadsbyfetching portions from different users based on information in the tracker
• onceauserfinishesdownloading,hisfull copy will remain available for download by others until the user clicks the “finish” button or otherwise closes the session
• ChanNaiMingvHKSAR[2007]3HKC 255 (CFA) (*RR):
– criminal charge: attempt to distribute infringing copies to such an extent as to affect prejudicially the copyright owner, contravening s.118(1)(f) (NB. Now s.118(1)(g) after amendment.)
– D’s argument that uploading is not distribution of copies:
» “copies” means physical copies, thus distribution of copies must involve transfer of physical copies
» uploader does not transfer any physical copies to anyone
– D’s argument rejected by CFA:
» CO, s.24(4) suggests that “copy” can be in “electronic form”
» electronic copy is comprised of the digital data and must be distinguished from the physical medium in which the data reside (ie. “electronic copy” simply means electronic data, there is no further requirement that the copy has to be a physical tangible object)
» electronic copy can be transmitted through the Internet without any physical transfer of the storage device incorporating the copy
» in P2P sharing using BT, the seeder computer responds to a downloader’s request by generating an electronic copy in the form of digital packets, which are then sent to the downloader
» this constitutes “distribution of copies” (NB. Should also constitute “issue of copies”!)
Q: Which of the following correctly describes what happens on Internet?
• placingthingsonInternetequivalentto placing things in a vending machine awaiting users to get them (CFA’s “vending machine analogy”)
• placingthingsonInternetequivalentto placing things on a photocopier awaiting users to make copies (“photocopier analogy”)
Q: Does Ming apply to streaming? 25
Hyperlinking
• useofahypertextlinkonawebpageto enable the user to jump to another webpage (often at another website)
• hyperlinkingtoanother’shomepage seldom creates problems
Q: Is there a right to stop others hyperlinking to your webpage?
Would a link ever amount to infringement?
• canwearguethatalinkamountsto authorising others to make infringing copies?
• factorstoconsider
– if the link automatically downloads or directly leads to downloading the target file, is there authorisation?
– if the link does not automatically downloads nor directly leads to downloading, is there authorisation?
Q: Any difference between pointing to a lawful copy vs pointing to an infringing copy?
NB. If a link points to a lawful copy uploaded by the copyright owner, there is an implied licence for linking and caching: cf. LC Paper October 2011 (*RR).
E1: X’s webpage has two buttons. If clicked, the first button will play the latest hit song for one minute, and the second button the latest movie. Underlying the two buttons are respectively a copy of the song clip and the movie clip. Any infringements?
E2: Same as in E1. The two buttons are actually hyperlinks to two sites hosting respectively the song clip and the movie
NB. For the latest development on copyright in HK, see Govt’s Consultation Paper on Updating HK’s Copyright Regime (24 November 2021) (*RR).
Recommended Reading
• ChanNaiMingvHKSAR[2007]3HKC 255 (CFA)
• LCPaperOctober2011
• ConsultationPaperonUpdatingHK’s Copyright Regime (24 November 2021)
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