Copyright (Amendment) Ordinance 2009 (Ordinance No. 15 of 2009), Hong Kong, China, WIPO Lex

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English Copyright (Amendment) Ordinance 2009 (Ordinance No. 15 of 2009)

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HONG KONG SPECIAL ADMINISTRATIVE REGION

HONG KONG SPECIAL ADMINISTRATIVE REGION

ORDINANCE NO. 15 OF 2009

L.S.

Donald TSANG

Chief Executive

26 November 2009

An Ordinance to amend the Copyright Ordinance to provide for the

circumstances in which section 119B(1) of the Ordinance does not apply.

[ ]

Enacted by the Legislative Council.

1. Short title

This Ordinance may be cited as the Copyright (Amendment) Ordinance

2009.

2. Commencement

This Ordinance comes into operation on the day appointed for the

commencement of section 33 of the Copyright (Amendment) Ordinance 2007 (15 of 2007).

Offence in relation to making for distribution or

distributing on a regular or frequent basis

infringing copies of copyright works in printed form contained in books, etc.

(1) Section 119B(3) of the Copyright Ordinance (Cap. 528), as added by

section 33 of the Copyright (Amendment) Ordinance 2007 (15 of 2007), is

repealed and the following substituted—

"(3) Subsection (1) does not apply in the circumstances

described in Schedules 1AA and 1AB.".

(2) Section 119B(19), (20) and (21) is repealed.

(3) Section 119B is amended by adding—

"(22) The Secretary for Commerce and Economic Development may, by notice published in the Gazette, amend Schedules 1AA and 1AB.".

Schedules 1AA and 1AB added

The following are added immediately after Schedule 1—

"SCHEDULE 1AA

CIRCUMSTANCES IN WHICH SECTION 119B(1) OF THIS

ORDINANCE DOES NOT APPLY (EXTENT OF MAKING

OR DISTRIBUTION OF INFRINGING COPIES)

PART 1

INTRODUCTORY

[s. 119B]

1. Interpretation

(1) In this Schedule— X

"A4 size" (A4 尺寸) means a size measuring 29.7 cmX 21 cm;

"infringing page" (侵犯版權頁) means a page that embodies, whether in

whole or in part, an infringing copy of any copyright work in a printed form that is contained in a magazine, periodical (other than

a specified journal) or newspaper;

"marked retail price" (標示零售價)—

(a) in relation to a copy of a book, means its retail price as

printed in or on it by the publisher;

(b) in relation to a copy of a publication series or multi-volume

set of books, means its retail price as printed in or on it by

the publisher; or

means its retail price as printed in or on it by the publisher;

"marked subscription price" (標示訂閱價), in relation to a specified

journal, means the subscription price of the journal as printed in or

on a copy of an issue of the journal by the publisher;

"qualifying copy" (限定複製品)—

(a) in relation to a book, means a set of pages, whether in a

printed or electronic form, that embodies, whether in whole or in part, an infringing copy of any copyright work in a printed form that is contained in a copy of the book, and corresponds to more than 25% of the printed pages of that

copy of the book; or

(b) in relation to a specified journal, means—

(i) a set of pages, whether in a printed or electronic form,

that embodies, whether in whole or in part, an infringing copy of any copyright work in a printed form that is contained in a copy of an issue of the journal, and corresponds to more than 25% of the

printed pages of that copy of the issue; or

(ii) a set of pages, whether in a printed or electronic form,

that embodies an infringing copy made from the whole of an article in a printed copy of an issue of the journal, and corresponds to not more than 25% of the printed

pages of that copy of the issue;

"recommended retail price" (建議零售價)—

(a) in relation to a copy of a book, means its retail price as

recommended by the publisher before any discount is given

to traders or consumers;

(b) in relation to a copy of a publication series or multi-volume

set of books, means its retail price as recommended by the publisher before any discount is given to traders or

consumers; or

journal, means its retail price as recommended by the publisher before any discount is given to traders or

consumers;

"recommended subscription price" (建議訂閱價), in relation to a specified

journal, means its subscription price as recommended by the

publisher before any discount is given to traders or consumers;

"specified journal" (指明期刊) means a periodical that contains scholarly

articles relating to a discipline, normally at least one of which in an issue has been peer-reviewed by one or more than one expert or scholar in the discipline.

(2) Expressions used in this Schedule that are defined for the

purposes of Part II (copyright) of this Ordinance have the same meaning as in that Part.

2. Currency conversion

For the purposes of converting into Hong Kong dollars a marked

retail price, marked subscription price, recommended retail price, recommended subscription price or market value that is denominated in a currency other than the Hong Kong dollar, reference is to be made to—

(a) the opening indicative counter exchange selling rate

published by The Hong Kong Association of Banks in

respect of that other currency; or

(b) if no such rate is published, the representative exchange rate

published by the International Monetary Fund in respect of that other currency.

PART 2

EXTENT OF MAKING OR DISTRIBUTION

OF INFRINGING COPIES

3. Magazines, periodicals (other than specified

journals) and newspapers

(1) Section 119B(1) of this Ordinance does not apply to the making

for distribution by a person, within any period of 14 days, of infringing copies of one or more than one copyright work in a printed form that is contained in magazines, periodicals (other than specified journals) or newspapers if the total number of infringing pages made by the person within that period does not exceed 500.

(2) Section 119B(1) of this Ordinance does not apply to the distribution by a person, within any period of 14 days, of infringing copies of one or more than one copyright work in a printed form that is contained in magazines, periodicals (other than specified journals) or newspapers if the total number of infringing pages distributed by the person within that period does not exceed 500.

(3) Part 3 of this Schedule sets out provisions relating to the calculation of the total number of infringing pages for the purposes of subsections (1) and (2).

4. Books and specified journals

(1) Section 119B(1) of this Ordinance does not apply to the making

for distribution by a person, within any period of 180 days, of infringing copies of one or more than one copyright work in a printed form that is contained in books or specified journals if the total value of qualifying copies made by the person within that period does not exceed $6,000.

(2) Section 119B(1) of this Ordinance does not apply to the distribution by a person, within any period of 180 days, of infringing copies of one or more than one copyright work in a printed form that is contained in books or specified journals if the total value of qualifying copies distributed by the person within that period does not exceed $6,000.

(3) Section 119B(1) of this Ordinance does not apply to the making for distribution by a person of infringing copies of one or more than one copyright work in a printed form that is contained in a book if the set of pages embodying such infringing copies made by the person does not fall within the meaning of paragraph (a) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(4) Section 119B(1) of this Ordinance does not apply to the making for distribution by a person of infringing copies of one or more than one copyright work in a printed form that is contained in a specified journal if the set of pages embodying such infringing copies made by the person does not fall within the meaning of paragraph (b) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(5) Section 119B(1) of this Ordinance does not apply to the distribution by a person of infringing copies of one or more than one copyright work in a printed form that is contained in a book if the set of pages embodying such infringing copies distributed by the person does not fall within the meaning of paragraph (a) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(6) Section 119B(1) of this Ordinance does not apply to the distribution by a person of infringing copies of one or more than one copyright work in a printed form that is contained in a specified journal if the set of pages embodying such infringing copies distributed by the person does not fall within the meaning of paragraph (b) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(7) Part 4 of this Schedule sets out provisions relating to the determination of the value of qualifying copies for the purposes of subsections (1) and (2).

PART 3

CALCULATION OF TOTAL NUMBER OF INFRINGING PAGES

5. Calculation of total number of infringing pages

(1) This section applies to the calculation of the total number of

infringing pages for the purposes of section 3(1) and (2) of this Schedule.

(2) In calculating the total number of infringing pages, the following

formula is to be used—

A= B + C + D

where—

A means the total number of infringing pages;

B means the number of infringing pages of A4 size, as

adjusted in accordance with subsections (3) and (4), if

applicable;

C means the number of infringing pages smaller than A4 size,

as adjusted in accordance with subsections (3) and (4), if

applicable;

D means the number of infringing pages larger than A4 size,

as adjusted in accordance with subsections (3) and (4), if applicable.

(3) In calculating the total number of infringing pages made or

distributed in a printed form—

(a) if any of the infringing pages are smaller than A4 size, the

number of those infringing pages shall be adjusted downward in proportion to the difference between the size of those infringing pages and an infringing page of A4 size, with the result expressed to 2 decimal places without rounding off;

(b) if any of the infringing pages are larger than A4 size, the

number of those infringing pages shall be adjusted upward in proportion to the difference between the size of those infringing pages and an infringing page of A4 size, with the result expressed to 2 decimal places without rounding off;

in part, an image (referred to in this paragraph as "the reduced image") of an infringing copy that has been reduced in size from the image (referred to in this paragraph as "the original image") of the work from which the infringing copy was made, the number of those infringing pages shall be adjusted upward in proportion to the difference between the size of the reduced image and that of the original image, with the result expressed to 2 decimal places without rounding off; and

(d ) if any of the infringing pages embody, whether in whole or

in part, an image (referred to in this paragraph as "the enlarged image") of an infringing copy that has been enlarged in size from the image (referred to in this paragraph as "the original image") of the work from which

the infringing copy was made, the number of those infringing pages shall be adjusted downward in proportion to the difference between the size of the enlarged image and that of the original image, with the result expressed to 2 decimal places without rounding off.

(4) In calculating the total number of infringing pages made or

distributed in electronic form—

(a) all images of infringing copies embodied in the documents

so made or distributed shall be printed on paper of A4 size and each side of such printout is taken to be one infringing

page;

(b) if any of the infringing pages so printed embody, whether in

whole or in part, an image (referred to in this paragraph as "the reduced image") of an infringing copy that has been reduced in size from the image (referred to in this paragraph as "the original image") of the work from which the infringing copy was made, the number of those infringing pages shall be adjusted upward in proportion to the difference between the size of the reduced image and that of the original image, with the result expressed to 2 decimal places without rounding off; and

whole or in part, an image (referred to in this paragraph as "the enlarged image") of an infringing copy that has been enlarged in size from the image (referred to in this paragraph as "the original image") of the work from which the infringing copy was made, the number of those infringing pages shall be adjusted downward in proportion to the difference between the size of the enlarged image and that of the original image, with the result expressed to 2 decimal places without rounding off.

PART 4

DETERMINATION OF VALUE OF QUALIFYING COPIES

6. Determination of value of qualifying

copies made from books

(1) This section applies to the determination, for the purposes of

section 4(1) and (2) of this Schedule, of the value of qualifying copies within the meaning of paragraph (a) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(2) A qualifying copy is taken to have the same value as a copy of a

book (referred to in this section as a "comparable copy") that—

(a) is not an infringing copy; and

(b) contains the copyright work that is the subject of the

qualifying copy.

(3) The value of a comparable copy is taken to be—

(a) the marked retail price of the comparable copy;

(b) if the comparable copy has no marked retail price, the

recommended retail price of the comparable copy; or

a recommended retail price, subject to subsection (4), the market value of the comparable copy in so far as it is readily ascertainable.

(4) If the comparable copy forms one of the volumes in a copy of a publication series or multi-volume set (referred to in this section as a "comparable set"), and the comparable copy has neither a marked retail price nor a recommended retail price, the value of the comparable copy is

taken to be—

(a) a fraction of the marked retail price of the comparable set in

which the denominator is the total number of printed pages of the comparable set and the numerator is the number of printed pages of the comparable copy, with the result expressed to 2 decimal places without rounding off; or

(b) if the comparable set has no marked retail price, a fraction

of the recommended retail price of the comparable set in which the denominator is the total number of printed pages of the comparable set and the numerator is the number of printed pages of the comparable copy, with the result expressed to 2 decimal places without rounding off.

(5) For the purposes of subsection (3)(a), if the comparable copy has 2 or more than 2 marked retail prices denominated in different currencies, the currency by reference to which the value of the comparable copy is to be calculated shall be determined in accordance with the following

order—

(a) firstly, Hong Kong dollar;

(b) secondly, United States dollar; and

printed in or on the comparable copy is denominated.

(6) For the purposes of subsection (4)(a), if the comparable set has 2 or more than 2 marked retail prices denominated in different currencies, the currency by reference to which the value of the comparable copy is to be calculated shall be determined in accordance with the following

order—

(a) firstly, Hong Kong dollar;

(b) secondly, United States dollar; and

printed in or on the comparable set is denominated.

(7) If the marked retail price, recommended retail price or market value referred to in subsection (3) or (4) is denominated in a currency other than the Hong Kong dollar, section 2 of this Schedule applies to the conversion of that price or value into Hong Kong dollars.

7. Determination of value of qualifying copies

made from specified journals (general

provisions)

(1) This section applies to the determination, for the purposes of

section 4(1) and (2) of this Schedule, of the value of qualifying copies within the meaning of paragraph (b) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(2) If—

(a) a qualifying copy within the meaning of paragraph (b)(i) of

the definition of "qualifying copy" in section 1(1) of this Schedule is made from a copy of an issue of a specified

journal; and

(b) that qualifying copy consists of one or more than one

qualifying copy within the meaning of paragraph (b)(ii) of the definition of "qualifying copy" in section 1(1) of this

Schedule,

in determining the total value of the qualifying copies referred to in paragraphs (a) and (b), only the value of the qualifying copy referred to in paragraph (a) is to be taken into account.

8. Determination of value of qualifying copies

made from specified journals (issues)

(1) This section applies to the determination, for the purposes of

section 4(1) and (2) of this Schedule, of the value of qualifying copies within the meaning of paragraph (b)(i) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(2) A qualifying copy is taken to have the same value as a copy of an issue of a specified journal (referred to in this section as a "comparable

copy") that—

(a) is not an infringing copy; and

(b) contains the copyright work that is the subject of the

qualifying copy.

(3) The value of a comparable copy is taken to be—

(a) the marked retail price of the comparable copy;

(b) if the comparable copy has no marked retail price, the

marked subscription price of the specified journal concerned as printed in or on the comparable copy divided by the number of issues covered in the subscription, with the result expressed to 2 decimal places without rounding off; or

specified journal concerned has no marked subscription price as printed in or on the comparable copy, the recommended subscription price of the specified journal concerned divided by the number of issues covered in the subscription, with the result expressed to 2 decimal places without rounding off.

(4) For the purposes of subsection (3)(a), if the comparable copy has 2 or more than 2 marked retail prices denominated in different currencies, the currency by reference to which the value of the comparable copy is to be calculated shall be determined in accordance with the following

order—

(a) firstly, Hong Kong dollar;

(b) secondly, United States dollar; and

printed in or on the comparable copy is denominated.

(5) For the purposes of subsection (3)(b), if the specified journal concerned has 2 or more than 2 marked subscription prices, as printed in or on the comparable copy, denominated in different currencies, the currency by reference to which the value of the comparable copy is to be calculated shall be determined in accordance with the following order—

(a) firstly, Hong Kong dollar;

(b) secondly, United States dollar; and

price as printed in or on the comparable copy is denominated.

(6) If the marked retail price, marked subscription price or recommended subscription price referred to in subsection (3) is denominated in a currency other than the Hong Kong dollar, section 2 of this Schedule applies to the conversion of that price into Hong Kong dollars.

9. Determination of value of qualifying copies

made from specified journals (articles)

(1) This section applies to the determination, for the purposes of

section 4(1) and (2) of this Schedule, of the value of qualifying copies within the meaning of paragraph (b)(ii) of the definition of "qualifying copy" in section 1(1) of this Schedule.

(2) A qualifying copy is taken to have the same value as a copy of an article in an issue of a specified journal (referred to in this section as a

"comparable copy") that—

(a) is not an infringing copy; and

(b) contains the copyright work that is the subject of the

qualifying copy.

(3) The value of a comparable copy is taken to be its recommended retail price.

(4) If the recommended retail price referred to in subsection (3) is denominated in a currency other than the Hong Kong dollar, section 2 of this Schedule applies to the conversion of that price into Hong Kong dollars.

——————————

SCHEDULE 1AB [s. 119B]

CIRCUMSTANCES IN WHICH SECTION 119B(1) OF THIS

ORDINANCE DOES NOT APPLY (MANNER OF

DISTRIBUTION OF INFRINGING COPIES)

1. Interpretation

Expressions used in this Schedule that are defined for the purposes of

Part II (copyright) of this Ordinance have the same meaning as in that Part.

2. Manner of distribution of infringing copies

(1) Subject to subsection (2), section 119B(1) of this Ordinance does

not apply to the distribution through a wire or wireless network of an infringing copy to which access is restricted by procedures of authentication or identification.

(2) Subsection (1) does not apply to an infringing copy embodied in a document that is distributed to an electronic mail address or facsimile number.".

Copyright (Amendment) Ordinance 2009 (Ordinance No. 15 of 2009), Hong Kong, China

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