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PREVENTION OF COPYRIGHT PIRACY ORDINANCE Chapter 544
Long title
An Ordinance to make further provision for the prevention of copyright piracy. [The Ordinance
Section 1 Short title
Preliminary - (1)
- This Ordinance may be cited as the Prevention of Copyright Piracy Ordinance.
Section 2 Interpretation
(1) In this Ordinance, unless the context otherwise requires“authorized officer” means a public officer authorized by the Commissioner under section 32 ; “Commissioner” means the Commissioner of Customs and Excise and any Deputy or
Assistant Commissioner of Customs and Excise;
“court” includes a magistrate;
“licence” means a licence granted under section 5 ;
“licensed premises”, in relation to a licensee, means any premises specified in his licence in
which optical discs are authorized to be manufactured; “licensee” means a person to whom a licence is granted, and includes any person to whom a licence is transferred in accordance with section 8 ; “manufacturer’s code” means a manufacturer’s code assigned to a licensee under section 5(2)(a) or 8(3)(b) ; “optical disc” includes - (a) �
- any medium or device listed in Schedule 1 ; and
- (b) �
- any other medium or device on which data may be stored in digital form and read by means of a laser,
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and, for greater certainty, includes any such medium or device manufactured for any purpose and whether or not any data readable by means of a laser has been stored on it;
“place” means any area on land or water and includes any building, structure or enclosure, whether moveable or not;
“register” means the register kept by the Commissioner under section 31 . - (2)
- For the purpose of this Ordinance, a person manufactures optical discs in Hong Kong if he owns, directs, manages or otherwise has control of a business in Hong Kong which includes the manufacturing of optical discs in Hong Kong.
- (3)
- All other words and expressions used in this Ordinance and defined in the Copyright Ordinance (Cap 528) have the same meaning as in that Ordinance.
Section 3
�Licence required to manufacture optical discs
�
Licences to manufacture optical discs - (1)
- No person shall manufacture optical discs in Hong Kong unless he holds a valid licence.
- (2)
- Subsection (1) does not apply
- (a) �
- to an employee of a licensee who manufactures optical discs in the course of his employment; or
- (b) �
- to the manufacture of optical discs for a purpose prescribed by the regulations.
Section 4
�Prohibition on manufacturing at unlicensed premises
� - (1)
- No licensee shall manufacture optical discs in any place in Hong Kong other than a licensed premises.
- (2)
- Subsection (1) does not apply to the manufacture of optical discs for a purpose prescribed by the regulations.
Section 5
�Application for and grant of licence
�
(1) The Commissioner may grant a licence to any person who makes an application for a licence in accordance with this Ordinance. - (2)
- In granting a licence, the Commissioner
- (a) �
- shall assign to the licensee a manufacturers’ code;
- (b) �
- shall impose all of the conditions as may be published by him from time to time by notice in the Gazette for the purpose of this section; and
- (c) �
- may impose such other conditions as he thinks fit for
(i) preventing the manufacture of infringing copies of copyright works;
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(ii) �protecting the rights of copyright owners and other persons to whom rights are conferred under the Copyright Ordinance (Cap 528);
(iii) �securing compliance by the licensee with any provisions of this Ordinance or the regulations; - (iv) �
- securing compliance by the licensee with any conditions of the licence; and
- (v) �
- ensuring the effective administration of this Ordinance.
- (3)
- A manufacturer’s code shall consist of
- (a) �
- one or more letters or numbers;
- (b) �
- a mark, sign, symbol or device; or
- (c) �
- any combination of letters, numbers, marks, signs, symbols or devices, as determined by the Commissioner.
- (4)
- A notice published under subsection (2)(b) shall not be regarded as subsidiary legislation.
Section 6
�Form, duration and effect of licence
� - (1)
- Every licence shall be in a form determined by the Commissioner and shall be valid for such period, not exceeding 3 years, as is specified in the licence.
- (2)
- Every licence shall authorize the person named therein to manufacture optical discs in the premises specified in the licence.
- (3)
- The following matters shall be endorsed on a licence
- (a) �
- any conditions imposed under section 5(2) or 8(3) ;
- (b) �
- the manufacturer’s code assigned to the licensee;
- (c) �
- any amendments made to the licence under section 7 or to any conditions endorsed on the licence under section 8(3) ; and
- (d) �
- any transfer of the licence approved under section 8 .
Section 7
�Amendment and renewal of licence
� - (1)
- The Commissioner may amend or renew a licence upon application made by the licensee in accordance with this Ordinance.
- (2)
- An application to amend or renew a licence must be made during such period as the Commissioner may specify.
- (3)
- Sections 5 and 6 apply, with such modifications as the circumstances require, to the amendment or renewal of a licence under this section.
Section 8
�Transfer of licence
�
Legislative Texts - (1)
- A licensee may transfer his licence to another person if the Commissioner approves the transfer under subsection (2) .
- (2)
- The Commissioner may upon application made by a licensee in accordance with this Ordinance, showing cause to his satisfaction, approve the transfer of the licence to another person.
- (3)
- In approving the transfer of a licence, the Commissioner may
- (a) �
- amend any conditions endorsed on the licence or impose any new conditions as he thinks fit, including any conditions referred to in section 5(2)(b) ; and
- (b) �
- assign to the person to whom the licence is transferred a manufacturer’s code in substitution for the manufacturer’s code endorsed on the licence.
Section 9
�Display of licence
�
(1) Subject to subsection (2) , a licensee shall cause his licence to be displayed at all times in a conspicuous location at the licensed premises. - (2)
- If there is more than one licensed premises, the licensee shall
- (a) �
- cause the licence to be displayed at any of the licensed premises; and
- (b) �
- obtain a duplicate licence from the Commissioner for each other licensed premises and cause it to be displayed at all times in a conspicuous location at that licensed premises.
Section 10
�New information to be furnished
� - (1)
- A licensee shall notify the Commissioner of any change which occurs in relation to any particulars set out in
- (a) �
- any application made by him under this Ordinance; or
- (b) �
- any notice previously given by him under this section.
- (2)
- The licensee shall so notify the Commissioner not later than 30 days after the change takes effect.
- (3)
- A notice under this section shall be given in such form and manner as the Commissioner may require.
Section 11
�Refusal to grant or renew licence
�
(1) The Commissioner may refuse to grant a licence, or to renew a licence, if he is satisfied that - (a) �
- the applicant for the licence or renewal, or a partnership or body corporate managed, owned or controlled by him, has been convicted of an offence under this Ordinance or the Copyright Ordinance (Cap 528) or under any previous law of Hong Kong relating to copyright;
- (b) �
- an offence under this Ordinance or the Copyright Ordinance (Cap 528) or under any previous law of Hong Kong relating to copyright has been committed in connection
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with any premises to which the application for the licence or renewal relates, whether or not any person has been convicted of that offence; - (c) �
- the applicant has furnished to the Commissioner any false or misleading information in connection with any application made, or notice given, by him under this Ordinance; or
- (d) �
- the applicant is not, for any other reason satisfactory to the Commissioner, a fit and proper person to hold a licence.
(2) If the Commissioner refuses to grant or renew a licence, he shall notify the applicant in writing of the grounds for the refusal within 14 days after his decision.
Section 12
�Revocation of licence
� - (1)
- The Commissioner may revoke a licence on any of the grounds for which he may refuse to grant or renew a licence under section 11(1) .
- (2)
- In addition, the Commissioner may revoke a licence if he is satisfied that the licensee
- (a) �
- has ceased to manufacture optical discs in Hong Kong;
- (b) �
- has ceased to manufacture optical discs at any licensed premises; or
- (c) �
- is in breach of, or is unable to comply with, any conditions endorsed on the licence.
- (3)
- The Commissioner shall not revoke a licence unless he first
- (a) �
- notifies the licensee in writing of his intention and the grounds upon which he proposes to revoke the licence; and
- (b) �
- permits the licensee to make representations to him in writing.
- (4)
- Representations under subsection (3)(b) shall be made within 14 days from the date of the notification under subsection (3)(a) or within such greater period as is specified in the notice.
- (5)
- If the Commissioner revokes a licence, he shall notify the licensee in writing of the grounds for the revocation within 14 days after his decision.
- (6)
- For the purpose of subsection (1)
- (a) �
- any reference in section 11(1) to an applicant shall be construed as a reference to a licensee; and
- (b) �
- the reference in section 11(1)(b) to the application for the licence or renewal shall be construed as a reference to the licence.
Section 13
�Cancellation of licence
�
The Commissioner may cancel a licence upon application made by the licensee in accordance with this Ordinance.
Section 14
�Appeals to Administrative Appeals Board
�
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Any person who is aggrieved by a decision of the Commissioner made under section 11 or 12 may appeal the decision to the Administrative Appeals Board.
Section 15
�Optical discs must be marked with manufacturer’s code
�
Marking of optical discs - (1)
- Every licensee shall cause each optical disc manufactured by him in Hong Kong to be marked with the manufacturer’s code endorsed on his licence.
- (2)
- Subsection (1) does not apply to the manufacture of optical discs for a purpose prescribed by the regulations.
- (3)
- In this section, “marked” means to be marked in accordance with the standards specified by the Commissioner under section 16.
Section 16
�Marking standards
� - (1)
- The Commissioner may by notice published in the Gazette specify standards for the marking of manufacturers’ codes on optical discs.
- (2)
- Without limiting the generality of subsection (1) , a notice published under this section may
- (a) �
- specify standards in relation to different classes or descriptions of optical discs;
- (b) �
- specify standards relating to the manner in which, and the means by which, manufacturers’ codes are to be marked on optical discs or on optical discs of any class or description; and
- (c) �
- adopt or incorporate by reference standards that have been published by any body or authority, with or without modification and either as in effect on a particular date specified in the notice or as amended from time to time.
- (3)
- A notice published under this section shall not be regarded as subsidiary legislation.
Section 17 Power of authorized officers to inspect licensed premises, etc.
Inspection and enforcement
(1) Every authorized officer shall for the purposes of this Ordinance have power to do all or any of the following things - (a) �
- to enter at all reasonable times (or, if specially authorized in writing by the Commissioner, at any time) any licensed premises;
- (b) �
- to inspect and search the licensed premises and every part thereof;
- (c) �
- to require the production of any licence relating to the operation of the licensed premises or the business concerned, whether granted under this Ordinance or otherwise;
Legislative Texts - (d) �
- to require the production of any book or document relating to the business concerned, including any licence or other document relating to a person’s right to manufacture optical discs;
- (e) �
- to inspect, remove and detain for the purpose of examination for so long as the Commissioner may consider necessary and to examine and copy any such licence, book or document;
- (f) �
- to remove and detain for the purpose of examination for so long as the Commissioner may consider necessary and to examine samples of optical discs found in the licensed premises;
- (g) �
- to make such examination and inquiry as may be necessary to ascertain whether the provisions of this Ordinance or the Copyright Ordinance (Cap 528) or the conditions of any licence granted under this Ordinance are being, or have been, complied with; and
- (h) �
- to exercise such other powers as may be necessary for giving effect to the provisions of this Ordinance.
- (2)
- A licensee and the employees, servants or agents of a licensee shall furnish the means required by an authorized officer to enable him to exercise his powers or perform his duties under this section.
- (3)
- If in pursuance of this section any authorized officer, having demanded admission into any place and declared his name and business at any entrance thereof, is not immediately admitted, he and any person acting in his aid may break into and forcibly enter the place.
Section 18
�Power of authorized officers to enter and search, etc.
� - (1)
- An authorized officer may
- (a) �
- subject to section 19 , enter and search any place; and
- (b) �
- stop, board and search any vessel, aircraft or vehicle (other than a ship of war, military aircraft or military vehicle),
in which he reasonably suspects that there is - (i) �
- any optical disc which has been manufactured in contravention of this Ordinance; or
- (ii) �
- any machinery, equipment or other thing which may be or may contain, or which may likely be or contain, evidence of an offence under this Ordinance.
- (2)
- An authorized officer may, in exercising his powers under subsection (1) , seize, remove or detain
- (a) �
- any optical disc which appears to him to have been, or to be likely to have been, manufactured in contravention of this Ordinance; and
- (b) �
- any machinery, equipment or other thing which appears to him to be or to contain, or to be likely to be or to contain, evidence of an offence under this Ordinance.
- (3)
- An authorized officer may seize, remove or detain any vessel, aircraft or vehicle (other than a ship of war, military aircraft or military vehicle) which he is empowered by this section to stop, board and search and which he reasonably suspects is being used, or to have been used, in connection with an offence under this Ordinance.
Legislative Texts - (4)
- An authorized officer may
- (a) �
- break into and forcibly enter any place which he is empowered by this section to enter and search;
- (b) �
- forcibly board any vessel, aircraft or vehicle which he is empowered by this section to stop, board and search;
- (c) �
- remove by force any person or thing obstructing him in the exercise of any power conferred on him by this section;
- (d) �
- detain any person found in any place which he is empowered by this section to enter and search until such place has been searched; and
- (e) �
- prevent any person from approaching or boarding any vessel, aircraft or vehicle which he is empowered by this section to stop, board and search until it has been searched.
- (5)
- Where it is not practicable to remove any machinery, equipment or other thing pursuant to subsection (2)(b) , an authorized officer may seal the machinery, equipment or other thing or the place where it is kept so as to prevent its use without breaking the seal.
- (6)
- Where a place is sealed under subsection (5) , the period for which the place is sealed shall not exceed 14 days unless an order has been made under subsection (8) .
- (7)
- The Commissioner may apply to a magistrate for an order that the period under subsection (6) be extended or further extended for such period as specified in the application.
- (8)
- Upon an application made under subsection (7) , the magistrate may, if having regard to all the circumstances of the case he thinks proper so to do, make an order extending or further extending the period under subsection (6) for such period as he thinks fit.
Section 19
�Authority to issue warrant for entry and search
� - (1)
- A magistrate may, if he is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any place
- (a) �
- any optical disc which has been manufactured in contravention of this Ordinance; or
- (b) �
- any machinery, equipment or other thing which may be or may contain, or which may likely be or contain, evidence of an offence under this Ordinance, issue a warrant authorizing an authorized officer to enter and search the place.
- (2)
- Subject to subsection (3) , an authorized officer shall not enter and search any place under section 18(1)(a) except under the authority of a warrant issued under this section.
- (3)
- An authorized officer may enter and search any place under section 18(1)(a) without a warrant issued under this section if the delay necessary to obtain a warrant could result in the loss or destruction of evidence or for any other reason it would not be reasonably practicable to obtain a warrant.
Section 20
�Seized optical discs, etc., liable to forfeiture
�
(1) Any optical disc, machinery, equipment or other thing seized, removed or detained by an authorized officer under section 18(2) or any machinery, equipment or other thing sealed by an
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authorized officer under section 18(5) is liable to forfeiture in accordance with this section and whether or not any person has been charged with an offence under this Ordinance. - (2)
- Sections 131 and 133 of the Copyright Ordinance (Cap 528) shall apply in respect of any optical disc, machinery, equipment or other thing liable to forfeiture under subsection (1) , with such modifications as the circumstances require.
- (3)
- For the purpose of applying sections 131 and 133 of the Copyright Ordinance (Cap 528), any reference in those sections
- (a) �
- to an offence under section 118 or 120 of that Ordinance shall be construed as a reference to an offence under this Ordinance;
- (b) �
- to an article, vessel, aircraft, vehicle or thing seized or detained by an authorized officer under section 122 of that Ordinance shall be construed as a reference to any optical disc, machinery, equipment or other thing seized, removed or detained by an authorized officer under section 18(2) or any machinery, equipment or other thing sealed by an authorized officer under section 18(5) of this Ordinance; or
- (c) �
- to section 132 of that Ordinance shall be construed as a reference to section 27 of this Ordinance.
Section 21
�Manufacturing optical discs without licence, etc.
�
Offences and penalties - (1)
- Any person who contravenes section 3 commits an offence and is liable
- (a) �
- on a first conviction, to a fine of $500000 and to imprisonment for 2 years; and
- (b) �
- on a second or subsequent conviction, to a fine of $1000000 and to imprisonment for 4 years.
- (2)
- Any person who contravenes section 4 or 15 commits an offence and is liable
- (a) �
- on a first conviction, to a fine at level 6 and to imprisonment for 2 years; and
- (b) �
- on a second or subsequent conviction, to a fine of $200000 and to imprisonment for 4 years.
- (3)
- Any licensee who manufactures optical discs in contravention of any conditions endorsed on his licence commits an offence and is liable
- (a) �
- on a first conviction, to a fine at level 2 and to imprisonment for 6 months; and
- (b) �
- on a second or subsequent conviction, to a fine at level 4 and to imprisonment for 1 year.
- (4)
- Any person who contravenes section 9 or 10 commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 6 months.
- (5)
- In any proceedings for an offence under subsection (3) , it shall be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence.
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Section 22
�Applying false manufacturer’s code, etc.
� - (1)
- Any person who
- (a) �
- forges a manufacturer’s code;
- (b) �
- falsely applies to an optical disc a manufacturer’s code or any mark so resembling a manufacturer’s code as to be calculated to deceive;
- (c) �
- makes any die, block, machine or other instrument for the purpose of forging, or of being used for forging, a manufacturer’s code;
- (d) �
- disposes of or has in his possession any die, block, machine or other instrument for the purpose of forging a manufacturer’s code; or
- (e) �
- causes to be done anything referred to in paragraph (a), ( b) ,