Comments on the Consultation Document on the Review of Certain Provisions of the Copyright Ordinance

Chapter 1: Criminal Provisions relating to End-user Piracy

The Bar is of the view that mere possession of an infringing copy by end
users should not be criminalized. The Bar refers to paragraph 1 of its
previous comments dated 25th April 2001, a copy of which is attached hereto
for ease of reference.

If criminal sanction is to be retained, it should be restricted to business
activities of a profit-making nature, and its ambit should be restricted
as far as possible to avoid any draconian consequences.

Paragraph 1.11(a): No

Paragraph 1.11(b): No

Paragraph 1.11(c): Yes

Paragraph 1.11(d): Yes

Paragraph 1.11(e):Yes

Chapter 2: Permitted Acts for Educational Purposes

Paragraphs 2.13(a) and (b)

From a legal point of view, the Bar prefers certainty to ambiguity, provided
the users and the parties involved are prepared to accept giving up flexibility
for certainty in respect of the permissible amount of work which the users
may copy under any proposed statutory approach to be adopted.

The educational users and the copyright owners would be in a better position
to express an opinion on what amount of work they should be allowed to
copy under this exemption, and the elements that should be covered if
the statutory approach is to be adopted.

Paragraph 2.13(c)

The act of recording or copying permissible under sections 44 and 45 of
the Copyright Ordinance should be permitted no matter whether there are
any licences available under any licensing schemes or not.

Acts permitted by the Copyright Ordinance do not need to be licensed.
Licensing schemes merely license the users to do what they are not otherwise
allowed to do.

Paragraph 2.13(d)

The Bar supports the proposed permitted act under this paragraph.

Chapter 3: Permitted Acts for Visually Impaired Persons

Paragraphs 3.4(a) and (b)

The Bar supports the proposed permitted acts under both paragraphs.

Chapter 4: Permitted Acts Related to Free Public Showing or Playing
of Broadcast or Cable Programme


Paragraph 4.9(a)

The statutory exemption should be extended to all underlying copyright
works.

It is not fair if all copyright owners are not treated equally.

Paragraph 4.9(b)

The Bar finds the proposed extension of the statutory exemption acceptable.

The Bar prefers this paragraph to read as "the exemption should be
extended to cover all public places where the broadcast or cable programme
is shown or played except where goods or services are supplied at prices
which are substantially attributable to higher than the normal
prices to reflect the provision
of the facilities afforded for seeing
or hearing the broadcast or programme."

Chapter 5: Parallel Importation of Copyright Works other than Computer
Software


Paragraph 5.14(a)

The Bar is in favour of removing civil liability and criminal sanction
against parallel importation of and subsequent dealing in all types of
copyright work.

The Bar refers to our view previously submitted to the Bar on this issue.
The Bar is in favour of the policy of free trade having regard to the
provisions of WTO.

It is against the public interest to place restrictions on parallel imports
and to allow traders to carve up the markets in different jurisdictions
and charge the consumers in Hong Kong artificially higher prices.

The lowering in retail prices is conducive to encourage a wider circulation
of books and dissemination of information and knowledge, and the availability
of less expensive computer programs and other apparatus is conducive to
lowering business costs in Hong Kong.

Paragraph 5.14(b)

The Bar is against the continuation of criminal sanction against parallel
importation and subsequent dealing in the parallel imported copies of
copyright works under this paragraph. See the comments under paragraph
5.14(a) above.

Paragraph 5.14(c)

The Bar is in favour of the removal of civil liability and criminal sanction
imposed on end-users of parallel imported copies of copyright works in
business. See the comments under paragraph 5.14(a) above.

Chapter 6: Unauthorised Reception of Subscription Television Programmes

Paragraph 6.12(a)

The Bar is not sure that this has anything to do with copyright infringement.


But insofar as the suggestion of making "fraudulent reception of
subscription television programmes" a criminal offence is concerned,
it should be made the subject of other Ordinances such as the Telecommunication
Ordinance or the Broadcasting Ordinance and not the Copyright Ordinance.

Insofar as private premises are concerned, any invasion of privacy, if
it has to be done, has to be done with sufficient safeguards.

Further consultation should be carried out after a more crystallized bill
on the criminalisation of "fraudulent reception of subscription television
programmes" is prepared.

Any power to award compensation in respect of "fraudulent reception
of subscription television programmes" should be provided for in
criminal proceedings under other ordinances and not the Copyright Ordinance.

Paragraph 6.12(b)

The Bar does not support this proposal as the fraudulent reception of
subscription television programme does not appear to be a copyright infringement
issue.

Paragraph 6.12(c)

The Bar only supports the introduction of criminal sanction but not civil
remedy against possession of an unauthorized decoder for commercial purposes.

Any power to award compensation in respect of possession of an unauthorized
decoder for commercial purposes should be provided for in criminal proceedings
under other ordinances and not the Copyright Ordinance.

Chapter 7: Licensing Bodies

Paragraph 7.13(a)

As copyright licensing involves public interest including those of the
consumers, it is preferable for a statutory tribunal instead of a bi-parte
mechanism to resolve licensing differences.

As arbitration is a consensual process, there has to be a mandatory system
such as the Copyright Tribunal to take care of cases where the parties
do not agree to submit their disputes to arbitration.

Parties can choose to mediate or arbitrate at any stage if they want to.

The procedures of the Copyright Tribunal should be simplified so as to
enable the parties to go straight to the substantive hearing which should
be made less formal. This is in line with past experience and the recent
proposal for reform of civil litigation in Hong Kong.

Paragraph 7.13(b)

The Bar supports the proposal under this paragraph in the interest of
transparency and accountability.

28th December 2001