Legal Protection of Digital Property
PhD(Computer Science) LLM(Intellectual Property) Department of Computer Science
1. Copying: s.23
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• “copying”=reproducinginanymaterial form, including
– storing in any medium by electronic means, and
– making copies which are transient or are incidental to some other use of the work
NB. Covers reproduction in main memory: Sony Computer Entertainment v Lik Sang Int’l (HCA 3583/2002).
NB. Copy includes “copies in electronic form”: s.24(4).
NB. Electronic copy = electronic data, and does not include the physical medium in which it resides: Ming v HKSAR [2007] 3 HKC 255 (CFA).
NB. Transient and incidental copying for internet browsing permitted: s.65.
Substantial part
• testforsubstantialityisqualitativerather than quantitative ie. “substantial part” = material part from the qualitative point of view: Ladbroke (Football) v [1964] 1 WLR 273; MS Associates v Power [1988] FSR 242;
• ifthepartcopiedcontainssufficientskill and labour, then substantial: IceTV v Nine Network Australia 80 IPR 451 (Aust HC, 2009) (*RR)
• if plaintiff can establish that
– there are striking similarities between defendant’s work and plaintiff’s work, and
– defendant had opportunity to access plaintiff’s work
court may infer copying if defendant cannot give a satisfactory explanation: Francis, Day & Hunter v Bron [1963] Ch 587 (*RR); LB (Plastics) v Swish Products [1979] RPC 611; Ibcos Computers v Barclays Mercantile [1994] FSR 275
• ifsimilaritystrongenough,itmayafford prima facie evidence to infer causal connection between plaintiff’s work and defendant’s work: Francis, Day & Hunter v Bron [1963] Ch 587; LB (Plastics) v Swish Products [1979] RPC 611; Ibcos Computers v Barclays Mercantile [1994] FSR 275
E1: X’s program contains 100 procedures. Y has copied 10 of them. Z has also copied 8 procedures from Y’s program, of which 5 are from X’s program.
E2: X was a former employee of Y and had written program A for Y during the employment. Later, X left Y and worked for Z. He has since written program B for Z. Except for differences in variable names, programs A and B are almost identical.
2. Issue of Copies to the Public (CO, s.24)
• issuing copies to the public = “putting into circulation copies not previously put into circulation, in HK or elsewhere, by or with the consent of the copyright owner” (also called “distribution right”)
• does not include any subsequent distribution, sale or rental
NB. S.24 applies to each freshly made copy of a work. If the copies are sold out and new copies made which are then put into circulation for the first time, it is still issuing copies of the work to the public despite there were copies already put into circulation prior to this.
Q: Does s.24 apply to infringing copies?
3. Rental to the Public (CO, s.25)
• “rental” must be for direct or indirect economic or commercial advantage
• applies to
– computer programs
– sound recordings
– literary, dramatic or musical works included in a sound recording
4. Making Available of Copies to the Public (CO, s.26)
• makingavailableofcopiesofaworkby wire or wireless means such that the work is accessible from a place and at a time individually chosen by members of the public (eg. putting on the Internet)
NB. Infringing regardless of whether the work has been accessed.
E1: X, a school teacher, has bought a program for timetabling. He lends it to Y, his colleague in charge of timetabling, on condition that Y would schedule X’s classes in such a way that X would have no class on Friday. Y later places a copy of the program in a newsgroup devoted to “efficient school administration”. Z, a subscriber to the newsgroup, downloads the program and distributes copies of it to his colleagues. Any infringements?
5. Performance, Playing or Showing in Public (CO, s.27)
• “performance” applies to literary, dramatic and musical works
– includes any mode of visual or acoustic presentation, including presentation by means of a sound recording, film, broadcast or cable programme of the work
• “playing or showing” applies to sound recordings, films, broadcasts and cable programmes
• “public”unlessquasi-domesticsetting
NB. Not important for software.
NB. Showing animation on screen
performing the underlying program.
NB. Performing a work under s.27 includes delivery by way of lecture (s.27(2)(a)). But such performance does NOT lead to performer’s rights (s.200(2))!
6. Broadcasting or Cabling (CO, s.28)
• appliestoallcategoriesofcopyrightwork except typographical arrangement
NB. Not important for computer programs.
7. Making Adaptation (CO, s.29)
• appliesonlytoliterary,dramaticand musical works
• ifnotcomputerprogram,”adaptation”=
– translating from one language to another
– converting from dramatic work into non- dramatic work and vice versa
– conveying a story by pictures
– arranging or transcribing a musical work
• foracomputerprogram,”adaptation”= “an arrangement or altered version of the program or a translation of it”
– “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”
– eg. compiling, decompiling, assembling or disassembling a program, or translating a program into a different language
8. Act Done in Relation to an Adaptation (CO, s.29(2))
• copyinganadaptation,issuing,renting or making available copies of an adaptation to the public is also a restricted act in respect of the original work
E1: T has written a book in English. W translates it into Chinese without permission. Does the translation enjoy copyright? If so, who owns the copyright?
E2: X’s program in Pascal contains a procedure A. Y translates procedure A to the C language, renames the procedure as B and incorporates it in his own program. Later, Z copies 5 procedures from Y’s program, including procedure B. Any infringement?
Meaning of “Authorisation” in CO, s.22(2)
• CBSSongsvAmstradConsumer Electronics [1988] RPC 567 (HL) (*RR)
– “sanctions, approves or countenances“
– “a grant or purported grant, which may be express or implied, of the right to do the act complained of“
– facilitating infringement does not imply authorising infringement!
• egofauthorisinginfringement
– supplying film to a cinema for showing it in public where such showing infringes
– commissioning the manufacture of furniture the design of which infringes
– providing photocopiers in library without adequate notice to warn against infringement
• University of Wales v Moorhouse 6 ALR 193 (Aust HC 1975) on meaning of “authorisation”: (*RR)
– “court may infer an authorization or permission from acts which fall short of being direct and positive; . . . indifference, exhibited by acts of commission or omission, may reach a degree from which authorization or permission may be inferred.“ (per )
– “a person who has under his control the means by which an infringement of
copyright may be committed… and who makes it available to other persons, knowing, or having reason to suspect, that it is likely
to be used for the purpose of committing an infringement, and omitting to take reasonable steps to limit its use to legitimate purposes, would authorize any infringement that resulted from its use.” (per )
NB. Both CBS and Moorhouse are persuasive authorities in HK.
Secondary Infringements
• businessdealingswithcopiesknowing, or having reasons to believe, that the copies are infringing
NB. Ignorance that the copies being dealt with are infringing is a defence to secondary infringement!
• knowledgerequiredis
– actual knowledge, or
– notice of facts such as would suggest to a reasonable man that a breach of copyright was being committed (“constructive knowledge”): LA Gear v Hi-Tec [1992] FSR 121
• generally,acopyis”infringing”if
– its making constituted an infringement (for locally made copies):CO, s.35(2), or
– it has been or proposed to be imported into HK and its making in HK would have constituted infringement or a breach of an exclusive licence (“hypothetical manufacture test”): CO, s.35(3)
E1: X is the copyright owner of a book. Y makes copies of the book in Mainland China. Y is not a licensee of X anywhere in the world. These copies are now sold in HK. Copies “infringing”?
E2: As in E1. Y is the authorised exclusive supplier of the book in Mainland China.
E3: As in E2. Y is also the authorised exclusive supplier of the book in HK.
NB. Read s.35A (added in 2003):
• copiesofcomputerprogramslawfully made outside HK (“parallel imports”) are NOT infringing despite s.35(3);
• thisissowhetherornotthereisan exclusive licensee in HK!
NB. Copies of computer programs not lawfully made outside HK still subject to s.35(3).
Recommended Reading
• IceTVvNineNetworkAustralia80IPR 451 (Aust HC, 2009)
• Francis,Day&HuntervBron[1963] Ch 587
• CBSSongsvAmstradConsumer Electronics [1988] RPC 567 (HL)
• UniversityofNewSouth 6 ALR 193 (Aust HC 1975)
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