Ordenanza de 2007 por la que se modifica la Ordenanza sobre Derechos de Autor (Ordenanza N° 15 de 2007), Hong Kong (China)

54B. Legislative Council

(1)

Copyright is not infringed by

(a)

anything done for the purposes of the proceedings of the Legislative Council; or

(b)

anything done by or on behalf of

(i)

the members of the Legislative Council; or

(ii)

The Legislative Council Commission, for the purposes of the exercise and discharge by the Legislative Council of its powers and functions.

(2)

Copyright is not infringed by anything done for the purposes of reportingthe proceedings of the Legislative Council; but this is not to be construed as authorizing the copying of a work which is itse1fa published report of the proceedings.".

18. Legislative Council and judicial proceedings

(1) Section 54 is amended by repealing the heading and substituting

"Judicial proceedings".

(2)

Section 54(1) is amended by repealing "the proceedings of the Legislative Council or".

(3)

Section 54(2) is amended, in the Chinese text, by repealing "iL1ft,*~ rF~".

19. Use of typeface in ordinary course of printing

Section 62(3) is amended, in the Chìnese text, by repealing "~~" and substituting "1~J~J'U".

20. Advertisement of sale of artistic work

(1)

Section 72(2) is amended, in the English text, by repealing "if that dealing infringes copyright for all subsequent purposes" and substituting "and, if that dealing infringes copyright, far all subsequent purposes".

(2)

Section 72(2) is amended, in the Chinese text, by repealing "~}f" and substituting "~;9U".

21. Section added

The following is added

"SIA. Playing of sound broadcasts
inside vehicles

(l)

The playing of a sound broadcast inside a vehicle primarily for the purpose of affording the driver of the vehicle access to public information (including but .not limited to news reports, weather forecasts and information relating to road traffic) does not infringe the copyright in the sound broadcast, any sound recording included in it or any literary, dramatic or musical work included in it.

(2)

In subsection (1), "vehicle" (}j[m) means any vehicle constructed or adapted for use on roads.".

22. Right to be identified as author or director

(1)

Section 89(1) is amended, in the Chinese text, by repealing "iI~" and substituting "'§1J\".

(2)

Section 89(4)(a) is amended, in the Chinese text, by repealing "Rit~" and substituting "/It~U".

(3)

Section 89(7)(c) is amended, in the Chinese text, by repealing "~~" and substituting "/It~U".

(4)

Section 89(8) is amended, in the Chinese text, by repealing "R~" and substituting "'§~".

23. Requirement that right be asserted

(1)

Section 90 is amended, in the heading, in the Chinese text, by repealing "R!Ji" and substituting "'§' ~".

(2)

Section 90(1) is amended, in the Chinese text, by repealing "a~" and substituting "1f~".

(3)

Section 90(2) is amended, in the Chinese text, by repealing "a~" where it twice appears and substituting "'§1J\".

(4)

Section 90(2)(a) is amended, in the Chinese text, by repealing "a~" and substituting "'§1J\". .

(5)

Section 90(3) is amended, in the Chinese text, by repealing "~~" and substituting "/ltyU".

(6)

Section 90(3) is amended, in the Chinese text, by repealing "lUi" and substituting "'§~".

(7)

Section 90(3)(b) is amended, in the Chinese text, by repealing "~jt" and substitutinz "~~tl".

'-'

(8)

Section 90(3)(b) is amended, in the Chinese text, by repealing "m~" and substituting "W11\".

(9)

Section 90(4) is amended, in the Chinese text, by repealing "m~" and substituting "W11\".

(10)

Section 90(4)(a) is amended, in the Chinese text, by repealing "~~" where it twice appears and substituting "W1.J\".

(11)

Section 90(4)(b) is amended, in the Chinese text, by repealing "~~" where it twice appears and substituting "W1.J\".

(12)

Section 90(4)(c) is amended, in the Chinese text, by repealing "=~" and substituting "W11\".

(13)

Section 90(4)(d) is amended, in the Chìnese text, by repealing "~~" where it twice appears and substituting "W1.J\".

(14)

Section 90(5) is amended, in the Chinese text, by repealing "R~" and substituting "W11\".

24. Exceptions to right

(1)

Section 91(4) is amended by adding
"(ca) section 54B (Legislative Councin( �".

(2)

Section 91(4)(d) is amended by repealing "Legislative Council and".

25. Right to object to derogatory
treatment of work

Section 92(4)(a) is amended, in the Chinese text, by repealing "M"" and substituting ",*~Ù"

26. Infringement of right by possessing or deaIing with infringing article

(1)

Section 95(1)(a) is amended by repealing "for the purpose of, in the course of, or in connection with, any trade or business" and substituting "for the purpose of or in the course of any trade or business".

(2)

Section 95(1)(c) is amended by repealing "for the purpose of, in the course of, or in connection with, any trade or business" and substituting "for the purpose of or in the course of any trade or business".

(3)

Section 95(1)(c) is amended, in the Chìnese text, by repealing "~~" and substituting "~~U".

(4)

Section 95(1)(d) is amended by repealing "otherwise than for the purpose of, in the course of, or in connection with, any trade or business" and substituting "otherwise than for the purpose of or in the course of any trade or business".

27. False attribution of work

(1)

Section 96(2)(b) is amended, in the Chìnese text, by repealing "mtJf" and substituting "~~U".

(2)

Section 96(5) is amended by repealing "for the purpose of, in the course of, or in connection with, any trade or business" and substituting "for the purpose of or in the course of any trade or business".

(3)

Section 96(6) is amended by repealing "for the purpose of, in the course of, or in connection with, any trade or business" and substituting "for the purpose of or in the course of any trade or business".

(4)

Section 96(7) is amended, in the Chinese text, by repealing "mt~" and substituting "~~U".

28. Application of provisions to joint works

(1)

Section 99(1) is amended, in the Chinese text, by repealing "11:%" and substituting "'E§1]\".

(2)

Section 99(2) is amended, in the Chinese text, by repealing "ìtJJX;" and substituting "R~".

29. Transmission of moral rights OD death

(1)

Section 106(3)(a) is amended, in the Chinese text, by repealing "~~" and substituting "'E§7J\".

(2)

Section 106(3)(b) is amended, in the Chinese text, by repealing "ìl~" and substituting "a~".

30. Order for delivery up

Section 109(1)(a) is amended by repealing "for the purpose of, in the course of, or in connection with, any trade or business" and substituting "far the purpose of or in the course of any trade or business".

31. Criminalliability for making or dealing with infringing articles, etc.

(1) Section 118 is amended, in the heading, by repealing "CriminaI liability for" and substituting "Offences in relation to".

(2) Section 118(1) is repealed and the following substituted

"(1) A person commits an offence if he, without the licence of the copyright owner of a copyright work

(a)

makes for sale or hire an infringing copy of the work;

(b)

imports an infringing copy of the work into Hong Kong otherwise than for his private and domestic use;

(c)

exports an infringing copy of the work from Hong Kong otherwise than for his private and domestic use;

(d)

sells, lets for hire, or offers or exposes for sale or hire an infringing copy of the work for the purpose of or in the course of any trade or business;

(e)

exhibits in public or distributes an infringing copy of the work for the purpose of or in the course of any trade or business which consists of dealing in infringing copies of copyright works;

(j)

possesses an infringing copy of the work with a view to

(i)

its being sold or let for hire by any person for the purpose of or in the course of any trade or business; or

(ii)

its being exhibited in public or distributed by any person for the purpose of or in the course of any trade or business which consists of dealing in infringing copies of copyright works; or

(g)

distributes an infringing copy of the work (otherwise than for the purpose of or in the course of any trade or business which consists of dealing in infringing copies of copyright works) to such an extent as to affect prejudicially the copyright owner.".

(3) Section 118 is amended by adding
"(lA) Where

(a)

a person exhibits in public or distributes an infringing copy of a copyright work for the purpose of or in the course of any trade or business; and

(b)

the circumstances in which the infringing copy is so exhibited or distributed give rise to a reasonable suspicion that the trade or business consists of dealing in infringing copies of copyright works,

then, unless there is evidence to the contrary, the trade or business 1S

presumed, for the purposes of any proceedings instituted under subsection

(l)(e), to be a trade or business which consists of dealing in infringing

copies of copyright works.

(lB) Where

(a)

a person possesses an infringing copy of a copyright work with a view to its being exhibitcd in public or distributed by any person for the purpose of or in the course of any trade or business; and

(b)

the circumstances in which the infringing copy is so possessed give rise to a reasonable suspicion that the trade or business consists of dealing in infringing copies of copyright works,

then, unless there is evidence to the contrary, the trade or business is presumed, for the purposes of any proceedings instituted under subsection (l)(f)(ii), to be a trade or business which consists of dealing in infringing copies of copyright works.".

(4) Section 118 is amended by adding

"(2A) A person commits an offence if he, without the licence of the copyright owner of a copyright work to which this subsection applies, possesses an infringingcopy of the work for the purpose of or in the course of any trade or business with a view to its being used by any person for the purpose of or in the course of that trade or business.

(2B) Subsection (2A) applies to a copyright work that is

(a)

a computer program;
Cb) a movie;
Cc) a television drama;

(d)

a musical sound recording; or

(e) a musical visual recording. (2e) Subsection (2A) does not apply to an infringing copy of a computer program in a printed formo

(2D) Subsection (2A) does not apply to the possession of an infringing copy of a computer program if

(a) the computer program incorporates the whole or any part of a work that is not a computer program itself, and the computer program is technically required for the viewing or listening of the work by a member of the public to whom a copy of the work is made available; or

Cb) the computer program is incorporated in a work that is not a computer program itself, and the computer program is technically required for the viewing or listening of the work by a member of the public to whom a copy of the work is made available.

(2E) Subsection (2A) does not apply to the possession of an infringing copy of a movie, television drama, musical sound recording or musical visual recording by the Hong Kong Film Archive for the purpose of heritage conservation if

(a)

the infringing copy was donated or given to the Hong Kong Film Archive by the public; or

(b)

the infringing copy was made by the Hong Kong Film Archive to preserve or replace the infringing copy referred to in paragraph (a) against loss, deterioration or damage.

(2F) Subsection (2A) does not apply to the possession of an infringing copy of a movie, television drama, musical sound recording or musical visual recording by the Hong Kong Film Archive for the purpose of doing any act in relation to the infringing copy (other than for the purpose referred to in subsection (2E)) if

(a)

the infringing copy was

(i)

an infringing copy donated or given to the Hong Kong Film Archive by the public; or

(ii)

an infringing copy made by the Hong Kong Film Archive to preserve or replace the infringing copy referred to in subparagraph (i) against Ioss, deterioration or damage;

(b)

it is not possible by reasonable enquiry to ascertain the identity and contact details of the copyright owner of the work in question; and

(c)

a copy (other than an infringing copy) of the work in question cannot be obtained on reasonable commerciaI terms.

(2G) Subsection (2A) does not apply if

(a)

the person who possesses an infringing copy does so for the purpose of providing legaI service in relation to the infringing copy, and

(i)

the person is enrolled on the ro11 of solicitors or the roli of barristers kept under the LegaI Practitioners Ordinance (Cap. 159); or

(ii)

the person has been admitted as a legaI practitioner in a jurisdiction other than Hong Kong;

(b)

the person who possesses an infringing copy is serving a pupillage under the Barristers (Qualification for Admission and Pupiliage) Rules (Cap. 159 sub. Ieg. AC) and he possesses the infringing copy for the purpose of assisting the barrister with whom he serves the pupillage in providing legaI service in relation to the infringing copy;

Cc) the person who possesses an infringing copy does so for the purpose of providing investigation service in re1ation to the infringing copy to the copyright owner or exclusive licensee of the copyright work concerned; or

Cd) the person who possesses an infringing copy does so on his client's premises and the infringing copy is provided to him by his client.".

(5) Section 118 is amended by adding-

"(2H) Without prejudice to section 125, where a body corporate or a partnership has done an act referred to in subsection (2A), the fol1owing person shall, unless there is evidence showing that he did not authorize the act to be done, be presumed a1so to have done the act-

Ca) in the case of the body corporate-

Ci) any director of the body corporate who, at the time when the act was done, was responsible for the internaI management of the body corporate; or

(ii) if there was no such director, any person who, at the time when the act was done, was responsible under the immediate authority of the directors of the body corporate for the internaI management of the body corporate;

(b) in the case of the partnership-

Ci) any partner in the partnership who, at the time when the act was done, was responsible for the internaI management of the partnership; or

(ii) if there was no such partner, any person who, at the time when the act was done, was responsible under the immediate authority of the partners in the partnership for the internaI management of the partnership.

(21)

A defendant charged with an offence under subsection (2A) by virtue of subsection (2H) is taken not to have done the act in question if

(a)

sufficient evidence is adduced to raise an issue that he did not authorize the act to be done; and

(b)

the contrary is not proved by the prosecution beyond reasonabIe doubt.

(21)

For the purposes of subsection (2I)(a)

(a) the defendant shall be taken to have adduced sufficient evidence if the court is satisfied that-

Ci) the defendant has caused the body corporate or partnership concerned to set aside financial resources, and has directed the use of the resources, -for the acquisition of a sufficient number of copies of the copyright work to which the proceedings relate, which are not infringing copies, for the use of the body corporate or partnership; or

(ii) the body corporate or partnership concemed has incurred expenditure for the acquisition of a sufficient number of copies of the copyright work to which the proceedings relate, which are not infringing copies, for the use of the body corporate or partnership;

(b) subject to paragraph (a), in determining whether sufficient evidence is adduced, the court may have regard to, including but not limited to, the following

(i)

whether the defendant has introduced policies or practices against the use of infringing copies of copyright works by the body corporate or partnership;

(ii)

whether the defendant has taken action to prevent the use of infringing copies of copyright works by the body corporate or partnership.".

(6)

Section 118(3) is amended by adding "or (2A)" after "subsection (1)".

(7)

Section 118 is amended by adding

"(3A) Ii is a defence for the person charged with an offence under subsection (2A) to prove that

(a)

he possessed the infringing copy in question in the course of his employment; and

(b)

the infringing copy in question was provided to him by or . on behalf of his employer for use in the course of his

employment. (3B) Subsection (3A) does not apply to an employee

(a)

who, at the time when the infringing copy in question was acquired, was in a position to make or influence a decision regarding the acquisition of the infringing copy; or

(b)

who, at the time when the offence in question was committed, was in a. position to make or influence a decision regarding the use or removal of the infringing copy in question.".

(8)

Section 118(4) is amended by repealing "far the purpose of, in the course of, or in connection with, any trade or business" and substituting "far the purpose of or in the course of any trade or business".

(9)

Section 118(5) is amended by repealing "far the purpose of, in the course of, or in connection with, any trade or business" and substituting "for the purpose of or in the course of any trade or business".

(10)

Section 118(6) is amended by repealing "not being excluded under section 35(4)" and substituting "not being excluded under section 35(4) and which was 1awfully made in the country, territory or area where it was made".

(11)

Section 118(8) is amended by repealing "for the purpose of, in the course of, or in connection with, any trade or business" and substituting "for the purpose of or in the course of any trade or business".

(12)

Section 118(8A) is repealed.

(13)

Section 118 is amended by adding

"(10) In this section, "dealing in" (~~~~) means sel1ing, letting for hire, or distributing for profit or reward.".

32. Penalties for offences under section 118

Section 119(1) 'is amended by adding "or (2A)" after "section 118(1)".

33. Section added

The following is added

"119B. Offence in relation to making for distribution
or distributing on a regolar or frequent basis
irtfringing copies or copyright works in
printed form contained in books, etc.

Cl) A person commits an offence if he does any of the fol1owing acts on a regu1ar or frequent basis for the purpose of or in the course of any trade or business-

(a)

without the licence of the copyright owner of a copyright work described in subsection (2), makes an infringing copy of the work for distribution, resu1ting in a financia1 loss to the copyright owner; or

(b)

without the licence of the copyright owner of a copyright _work described in subsection (2), distributes an infringing copy of the work, resulting in a fmancial loss to the copyright owner.

(2)

The copyright work referred to in subsection (1)(a) and (b) is a copyright work in a printed form that is contained in-

(a)

a book;

(b)

a magazine;

(c)

a periodical; or

(d)

a newspaper.

(3)

Subsection (1) does not apply in circumstances where

(a)

the making or distribution ofthe infringing copies of one or more than one copyright work referred to in subsection (1) does not exceed the extent specified in the regulations made under subsection (19); or

(b)

the infringing copies of one or more than one copyright work referred to in subsection (1) are made or distributed in the manner specified in the regulations made under subsection (21).

(4)

Subsection (1) does not apply to an educational establishment of any of the folIowing descriptions

(a)

an educationa1 establishment specified in section 1 of Schedule 1;

(b)

an educational establishment exempt from tax under section 88 of the Inland Revenue Ordinance (Cap. 112); or

(c)

an educational establishment receiving direct recurrent subvention from the Govemment.

(5)

Subsection (1) does not app1y to the distribution through a wire or wire1ess network of an infringing copy to which access is not restricted by procedures of authentication or identification.

(6)

Subsection(1)does notapp1yiftheinfringing copy

(a)

forms part or the specia1 collection of a 1ibrary or archive owned by the Govemment, or a library or archive designated under subsection (10)(a); and

(b)

is distributed solely

(i)

for on-the-spot reference use in, or during an activity organized by, a library or archive referred to in paragraph (a); or

(ii)

for loan to other libraries or archives for the purpose of exhibition or research.

(7)

Subsection (1) does not apply to the making or distribution by a 1ibrary or archive referred to in subsection (6)(a) of a single copy of any

.item forming the special col1ection for the purpose of preserving or rep1acing the item against loss, deterioration or damage, but the copy may on1y be distributed for the use referred to in subsection (6)(b).

(8) In subsections (6) and (7), "special collection" (t~J3[Jr&~JTh)-

Ca) in the case of a library or archive owned by the Govemment, means a collection consisting primari1y of works or artic1es, or copies of works or articles, donated or given by the public that are, in the opinion of the Director of Leisure and Cu1tura1 Services, of cultural, historica1 or heritage importance or value;

(b) in the case of a library or archive designated under subsection (lO)(a), means a collection consisting primariIy of works or articles, or copies of works or articles, donated or given by the public that are, in the opinion of the head or controlling body (by whatever name called) of the library or archive, of culturaI, historicai or heritage importance or value.

(9) For the purposes of the exception under subsections (6) and (7), an archive owned by the Govemment includes a museum owned by the Govemment.

(lO) The Secretary for Commerce and Economie Development may, having regard to the advice of the Director of Leisure and Cultural Services

(a)

by notice published in the Gazette designate for the purposes of subsection (6)(a) any library or archive that is exempt from tax under section 88 of the Iniand Revenue Ordinance (Cap. 112); and

(b)

by regulations prescribe the conditions that a library or archive designated under paragraph (a) must comply in order to be eligibie for the exemption provided by subsections (6) and (7).

(11) Without prejudice to section 125, where a body corporate or a partnership has done an act referred to in subsection (1), the following person shall, unless there is evidence showing that he did not authorize the act to be done, be presumed also to have done the act

(a) in the case of the body corporate

(i)

any director of the body corporate who, at the time when the act was done, was responsible for the internaI management of the body corporate; or

(ii)

if there was no such director, any person who, at the time when the act was done, was responsible under the immediate authority of the directors of the body corporate for the internaI management of the body corporate;

Cb) in the case of the partnership

(i)

any partner in the partnership who, at the time when the act was done, was responsible for the internaI management of the partnership; or

(ii)

if there was no such partner, any person who, at the time when the act was done, was responsibie under the immediate authority of the partners in the partnership for the internaI management of the partnership.

(12)

A defendant charged with an offence under subsection (1) by virtue of subsection (11) is taken not to have done the act in question if

(a)

sufficient evidence is adduced to raise an issue that he did not authorize the act to be done; and

(b)

the contrary is not proved by the prosecution beyond reasonable doubt.

(13)

For the purposes of subsection (12)(a)

(a)

the defendant shall be taken to have adduced sufficient evidence if the court is satisfied that

(i)

the defendant has caused the body corporate or partnership concemed to set aside financial resources, and has directed the use of the resources, for the acquisition of appropriate Iicences, in accordance with the needs of the body corporate or partnership, to make or distribute, or to make and distribute, copies of the copyright work -to which the proceedings relate far the use of the body corporate or partnership;

(ii)

the defendant has caused the body corporate or partnership concemed to set aside financial resources, and has directed the use of the resources, for the acquisition of a sufficient number of copies of the copyright work to which the proceedings re1ate, which are not infringing copies, for the use of the body corporate or partnership;

(iii) the body corporate or partnership concerned has incurred expenditure for the acquisition of appropriate licences, in accordance with the needs of the body corporate or partnership, to make or distribute, or to make and distribute, copies of the copyright work to which the proceedings relate for the use of the body corporate or partnership; or (iv) the body corporate or partnership concerned has incurred expenditure for the acquisition of a sufficient number of copies of the copyright work to which the proceedings reIate, which are not infringing copies, far the use of the body corporate or partnership;

(b)

subject to paragraph (a), in determining whether sufficient evidence is adduced, the court may have regard to, inc1uding but not limited to, the following

(i)

whether the defendant has introduced policies or practices against the making and distribution of infringing copies of copyright works by the body corporate or partnership;

(ii)

whether the defendant has taken action to prevent the making or distribution of infringing copies of copyright works by the body corporate or partnership.

(14)

It is a defence for the person charged with an offence under subsection (1) to prove that

(a)

he has taken adequate and reasonable steps to obtain a licence from the copyright owner in question but failed to get a timeIy response from the copyright owner;

(b)

he has made reasonabIe efforts but failed to obtain commercially availabIe copies of the copyright work in question and the copyright owner in question has refused to grant him a licence on reasonable commerciaI terms;

(c)

he did not know and had no reason to believe that the copies made or distributed are infringing copies; or

(d)

he cannot, after making reasonable enquiries, ascertain the identity and contact details of the copyright owner in questiono

(15)

It is a defence for the person charged with an offence in respect of an act under subsection (1) to prove that

(a)

he did the act in the course of his employment; and

(b)

he did the act in accordance with the instruction given to him by or on behalf of his employer in the course of his employment.

(16)

Subsection (15) does not apply to an employee who, at the time when the infringing copy in question was made or distributed, was in a position to make or influence a deeision regarding the making or distribution ofthe infringing eopy.

(17)

A person who commits an offence under subsection (1) is liable on eonviction on indietment to a fine at level 5 in respect of each infringing copy and to imprisonment for 4 years.

(18)

Sections 115 and 11 7 (presumptions as to various matters eonnected with copyright) do not apply to proceedings for an offence under subsection (1).

(19)

For the purposes of subsection (3)(a), the Secretary for Commerce and Economie DeveIopment may, in relation to one or more than one copyright work referred to in subsection (1), make regulations to preseribe that subseetion (1) does not apply in circumstanees where the making or distribution of the infringing copies of the copyright work or works does not exeeed the extent specified in the regulations.

(20)

The Secretary far Commerce and Economie Development may, in the regulations made under subsection (19), specify the extent referred to in that subseetion by reference to

(a)

the number of infringing copies made or distributed;

(b)

the value of those infringing copies; and

(c)

any other factors that he may consider relevant, and provide for a method or methods for determining the number of those infringing copies, and a method or methods for determining the value of those infringing copies, having regard to the retail value of the related books, magazines, periodicals or newspaper, and any other factors that he may consider relevant.

(21)

For the purposes of subsection (3)(b), the Secretary for Commerce and Economie Development may, in relation to one or more than one copyright work referred to in subsection (1), make regulations to prescribe that subsection (1) does not apply in circumstances where the infringing copies of the copyright work or works are made or distributed in the manner specified in the regulations, after having regard to

(a)

the availability of any licensing scheme that covers the making or distribution of copies of the copyright work or works in the specified manner; and

(b)

any other factors that he may consider relevànt.".

34. Making infringing copies outside
Hong Kong, etc.

Section 120(2) is amended by repealing "for the purpose of, in the course of, or in connection with, any trade or business" and substituting "for the purpose of or in the course of any trade or business".

35. Time Iim.it for prosecutions

Section I20A is amended by repealing everything after"commission of the offence" and substituting a full stop.

36. Affidavit evidence

(1) Section 121(1) is amended by repealing "An affidavit which purports to have been made by or on behalf of the owner of a copyright work" and substituting "For the purpose of facilitating the proof of subsistence and ownership of copyright, and without prejudice to the operation of sections Il to 16 (authorship and ownership of copyright) and sections 17 to 21 (duration of copyright), an affidavit which purports to have been made by or on behalf of the copyright owner of a copyright work".

(2) Section 121(1)(b) is repealed and the following substituted

"(b) the name of the author of the work;
(ba) where the author of the work is an individual

(i)

the pIace of domicile of the author;

(ii)

the pIace of residence of the author; or

(iii) the pIace where the author has a right of abode;
(bb) where the author of the work is a body corporate

(i)

the pIace of incorporation of the author; or

(ii)

the principal place of business of the author;".

(3)

Section 121(1)(c) is amended by repealing "owner of the work" and substituting "copyright owner".

(4)

Section 121(2) is amended by repealing "Without prejudice to subsection (1), an affidavit which purports to have been made by or on behalf of the owner of a copyright work" and substituting "For the purpose of facilitating the proof of subsistence and ownership of copyright, and without prejudice to subsection (1) and the operation of sections 11 to 16 (authorship and ownership of copyright) and sections 17 to 21 (duration of copyright), an affidavit which purports to have been made by or on behalf of the copyright owner of a copyright work".

(5)

Section I21(2)(a)(iii) is amended by repealing "owner of the work" and substituting "copyright owner".

(6) Section 121 is amended by adding

"(2A) For the purposes of facilitating the establishment of the rnatter referred to in section 35(3)(b), an affidavit which purports to have been made by or on behalf of the copyright owner of a copyright work and which

(a)

states the name of the copyright owner;

(b)

states that a copy of the work exhibited to the affidavit is a true copy of the work;

(c)

states

(i)

that the copy of the work exhibited to the affidavit was made in a pIace outside Hong Kong by the copyright owner; or

(ii)

that the copy of the work exhibited to the affidavit was made in a pIace outside Hong Kong by a person who has the licence of the copyright owner to make copies ofthe work in that pIace, but does not have the licence . of the copyright owner to make copies of the work in Hong Kong; and

(d)

states the name and address of the person (if any) referred

to in paragraph (c)(ii), shall, subject to the conditions contained in subsection (4), be admitted without further proof in any proceedings under this Ordinance.

(2B) For the purposes of any proceedings instituted under section 118(1), an affidavit which purports to have been made by or on behalf of the copyright owner of a copyright work and which

(a)

states the name of the copyright owner; and

(b)

states that the person named in the affidavit does not have the licence of the copyright owner to do an act referred to in section 118(1)(a), Cb), (c), (d), (e), (f) or (g) in respect ofthe work,

shall, subject to the conditions contained in subsection C4), be adrnitted without further proof in those proceedings.

(2C) For the purposes of any proceedings instituted under section 118(2A), an affidavit which purports to have been made by or on behalf of the copyright owner of a copyright work and which-

Ca) states the name of the copyright owner; and

(b) states that the person named in the affidavit does not have the licence of the copyright owner to do an act referred to in section 118(2A) in respect of the work,

shall, subject to the conditions contained in subsection C4), be adrnitted without further proof in those proceedings.".

(7) Section 121 is amended by adding

"C2D) Far the purposes of any proceedings instituted under section 119B(1), an affidavit which purports to have been made by or on behalf of the copyright owner of a copyright work and which-

Ca) states the name of the copyright owner; and

(b) states that the person named in the affidavit does not have the licence ofthe copyright owner to do an act referred to in section 119B(I) in respect of the work,

shall, subject to the conditions contained in subsection (4), be adrnitted without further proof in those proceedings.".

(8)

Section 121(3) is amended by repealing "subsection (1) or (2)" and substituting "subsection (1), (2), (2A), (2B), (2C) or (2D)".

(9)

Section 121(4) is amended by repealing "subsection (1) or (2)" and substituting "subsection (1), (2), (2A), (2B), (2C) or (2D)".

(lO) Section 121(7) is amended by repealing "subsection (1) or (2)" and substituting "subsection (1), (2), (2A), (2B), (2C) or (2D)".

(11) Section 121(8)(b) is repealed and the following substituted

"(b) the court may of its own motion or, if the defendant who has served a notice under subsection (5) in relation to an affidavit satisfies the court

(i)

that the ownership or subsistence of the copyright in a work is, insofar as that matter is stated in the affidavit, genuinely in issue;

(ii)

that whether a person has the licence of the copyright owner of a copyright work to do a particular act is, insofar as that matter is stated in the affidavit, genuinely in issue; or

(iii) where the affidavit is made under subsection (2A), that any matter stated in the affidavit, other than those referred to in subparagraphs (i) and (ii), is genuinely in issue,

either before or during the hearing, require the deponent to the affidavit to attend before the court and give evidence.".

(12) Section 121(13)(a) is amended by repealing "subsection (1) or (2)" and substituting "subsection (1), (2), (2A), (2B), (2e) or (2D)".

37. Seized articles, etc. liable to forfeiture

(1). Section 131(1) is amended by adding ", 119B" after "119A".

(2) Section 131(7) is amended by adding ", 119B" after "119A".

38. Disposal of articles, etc. where a
person is charged

Section132 is amended by adding ", 119B" after "119A".

39. Determination of application for forfeiture

(1)

Section 133(5) is amended by adding ", 119B" after "119A".

(2)

Section 133(6) is amended by adding ",. 119B" after "119A".

40. Licensing schemes to which sections 155 to 160 apply

Section 154(b) is amended by repealing "a computer program or sound recording" and substituting "a work referred to in section 25(1)(a), (b), (c), (d),

(e) or (f)".

41. Licences to which sections 162 to 166 apply

Section 161(b) is amended by repealing "a computer program or sound recording" and substituting "a work referred to in section 25(1)(a), (b), (c), (d),

(e) or (f)".

42. Constitution for purposes of proceedings

Cl) Section 172 is amended by adding

"(1A) Notwithstanding subsection (1), any proceedings specified for the purposes of this subsection in rules made under section 174 (generaI procedures rules) may be heard and determined by any of the fol1owing persons sitting alone

(a)

the Chairman of the TribunaI;

(b)

the Deputy Chairman of the Tribunal; or

(c)

a suitably qualified ordinary member of the Tribuna1 appointed by the Chairman ofthe TribunaL".

(2) Section 172(5) is amended by repealing "subsection (4)(b)" and substituting "subsection (lA) or (4)(b)".

43. Groundless threat of proceedings in
relation to parallel import

(l)

Section 187 is amended, in the heading, by repealing "paralleIimport" and substituting " "paralleI-imported" copies of works".

(2)

Section 187(1) is amended by adding "and which was lawfully made in the country, territory or area where it was made" after "section 35(3)".

44. FoIklore, etc.: anonymous unpublished works

Section 189 is amended, in the heading, in the Chinese text, by repealing "fç;rB'~~" and substituting "fç;rB'X~.1ifq".

45. Meaning of "publication" and "commerciaI publication"

Section 196(4)(b)(i) is amended, in the Chinese text, by repealing "~.w:" and substituting "~JU"

46. Requirement of signature: application in relation to body corporate

(1)

Section 197(1) is amended, in the Chinese text, by repealing "~.w:" and substituting "~JU".

(2)

Section 197(1) is amended, in the Chinese text, by repealing "2m" and substituting "W;(K".

(3)

Section 197(2) is amended, in the Chìnese text, by repealing "2:Ejt" and substituting "W;(K".

Introductory

272A. MoraI rights conferred on certain
performers

(1)

This part confers the fol1owing moral rights on a performer of a live aural performance or a performer whose performance is fixed in a sound recording

(a)

the right to be identified as a performer (section 272B); and

(b)

the right not to have his performance subjected to derogatory treatment (section 272F).

(2)

The moral rights are conferred on the performer onIy if the performance is a qualifying performance.

(3)

The moral rights conferred on the performer are in addition to any other rights in re1ation to the performance that the performer or any other person may have under this Ordinance.

(4)

In this Part"aural performance" (~§~~~)

(a)

means a performance which may be perceived by the human ear; or

(b)

where part of a performance may be perceived by the

human ear, means that part of the performance, and includes a musical performance, a spoken performance and a performance in any intermediate forms between singing and speaking;

"make available to the public live" (~p:f;~rcu0X0.~1jt), in relation to a performance, means to make available of the unfixed performance, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access the performance from a place individual1y chosen by them;

"performership" Oj[tfj) means participation In a performance, as the performer or one of the performers; "sound recording" (~if#.è~)-Ca) subject to paragraph Cb), has the same meaning as in Part II (copyright); Cb) does not include a film sound-track which accompanies a film within the meaning of Part II.

(5) The fol1owing expressions have the same meaning in this Part as

in Part II (copyright}
broadcast;
business;
cable programme;
cable programme service; and
published.

(6) The following expressions have the same meaning in this Part as

in Part III (rights in performances)
fixation;
performance;
performer; and
qualifying performance.

(7)

For the purposes of this Part, if a performance of a musical work is conducted by a conductor, the sounds of the performance are treated as having been made by the conductor and the person who actually made those sounds, and a reference to a performer includes a reference to the conductor.

(8)

Section 204(2), (3) and (4) applies, with the necessary modifications, to references in this Part to the issue to the public of copies of a sound recording, as it applies to references in Part III to the issue to the public of copies of a fixation.

(9)

Section 205(2), (3) and (4) applies, with the necessary modifications, to references in this Part to the making available to the public ofcopies ofa sound recording, as it applies to references in Part III to the making available to the public of copies of a fixation.

Right to be identified as performer

272B. Right to be identified as performer

(1)

A performer of a live aural performance or a performer whose performance is fixed in a sound recording has the right to be identified as a performer in the performance whenever

(a)

the performance is staged in public, made available to the public live, broadcast live or included live in a cable programme service; or

(b)

copies of the sound recording in which the performance is fixed are issued or made available to the public, broadcast or included in a cable programme service.

(2)

The right of the performer under this section is, in the case of the issue or making available to the public of copies of a sound recording in which the performance is fixed, the right to be identified in or on each copy or, if that is not appropriate, in some other manner likely to bring his identity to the notice of a person acquiring a copy.

(3)

The right of the performer under this section is, in any case other than the case referred to in subsection (2), the right to be identified in a manner likely to bring his identity to the notice of a person hearing the performance, broadcast or cabIe programme in questiono

(4)

The rights of the performer referred to in subsections (2) and (3) include the right to be identified in a clear and reasonably prominent or audible manner.

(5)

If the performer in asserting his right to be identified specifies a pseudonym, initials or some other particular form of identification, that form must be used; otherwise any reasonable form of identification may be used.

(6)

If a performance is presented by performers who use a group name, identification by using the group name is sufficient identification of the performers in the group.

272C. Requirement that right under section 272B be asserted

(1)

A person does not infringe the right conferred by section 272B (right to be identified as performer) by doing any of the acts referred to in that section unIess the right has been asserted in accordance with the fol1owing provisions so as to bind him in relation to that act.

(2)

The right may be asserted generally, or in relation to any specified act or description of acts

(a)

on an assignment of a performer's economie rights conferred by Part III in a live auraI performance that has taken pIace or is to take place or in a performance that has been fixed or is to be fixed in a sound recording, by including in the instrument effecting the assignment a statement that the performer asserts in relation to that performance or that performance fixed in the sound recording his right to be identified; or

(b)

by instrument in writing signed by the performer.

(3)

The persons bound by an assertion ofthe right under subsection

(2)

are

(a)

in the case of an assertion under subsection (2)(a), the assignee and anyone c1aiming through rum, whether he has notice of the assertion;

(b)

in the case of an assertion under subsection (2)(b), anyone to whose notice the assertion is brought.

(4)

In an action for infringement of the right the court shall, in considering remedies, take into account any delay in asserting the right.

272D.. Exceptions to right onder
section 272B

(1) The right conferred by section 272B (right to be identified as performer) does not apply where it is not reasonably practicable to identify the performer.

.(2) The right does not apply in relation to a performance given for the purposes of reporting current events.

(3)

The right does not apply in relation to a performance given for the purposes of advertising any goods or services or making announcements of matters of public interest.

(4)

The right is not infringed by an act which by virtue of any of the following provisions would not infringe any right conferred by Part III

(a)

section 241 (fair dealing for certain purposes), insofar as it relates to the reporting of current events by means of a sound recording, broadcast or cable programme;

(b)

section 242 (incidental inc1usion of performance or fixation);

(c)

section 243(2) (examination questions);

(d)

section 246B (Legislative Councin( �

(e)

section 247 (judicial proceedings);

(f)

section 248 (statutory inquiries).

272L. Moral rights not assignable

The rights conferred by section 272B (right to be identified as performer) and section 272E (right to object to derogatory treatment) are not assignabIe.

272M. Transmission of moral rights on death

(1) On the death of a person entitIed to the right conferred by section 272B (right to be identified as performer) or section 272E (right to object to derogatory treatment)

(a) the right passes to such person as he may by testamentary disposition specifically direct;

Cb) if there is no such direction but the performer's economie rights conferred by Part III in respect of the performance in question form part of his estate, the right passes to the person to whom the economie rights pass; and

Cc) if or to the extent that the right does not pass under paragraph Ca) or (b), the right is exercisable by his personal representatives.

(2) Where a performer's economie rights conferred by Part III and forming part of his estate pass in part to one person and in part to another, as for example where a bequest is limited so as to apply-

Ca) to one or more, but not all, of the things the owner has the exclusive right to do or consent; or

(b) to part, but not the whole, of the period for which the rights

subsist, any right which passes with the performer's economie rights by virtue of subsection (1)(b) is correspondingly divided.

(3)

Where by virtue of subsection (1)(a) or (b) a right beeomes exercisable by more than one person, the following provisions have effect with respect to the right

(a)

it may, in the case of the right conferred by section 272B (right to be identified as performer), be asserted by any of them;

(b)

it is, in the case of the right conferred by section 272E (right to object to derogatory treatment), a right exercisable by each of them and is satisfied in relation to anv of them if he consents to the treatment or act in question; and

(c)

any waiver of the right in accordance with section 2721 by any of them does not affect the rights of the others.

(4)

A consent or waiver previously given or made binds any person to whom a right passes by virtue of subseetion (1).

(5)

Any damages reeovered by personal representatives by virtue of this seetion in respeet of an infringement after a person's death devolve as part of his estate as if the right of aetion had subsisted and been vested in him immediately before his death.

272N. Remedies for infringement of performers' moraI rights

(l)

An infringement of the right conferred by seetion 272B (right to be identified as performer) or seetion 272E (right to objeet to derogatory treatment) is aetionable as a breaeh of statutory duty owed to the person entitled to the right.

(2)

In proceedings for infringement of the right conferred by section 272E, the court may, if it thinks it is an adequate remedy in the circumstances, grant an injunction on terms prohibiting the doing of any act unless a disclaimer is made, in such terms and in such manner as may be approved by the court, dissociating a performer from the treatment of a live aural performance or a performance fixed in a sound recording.

2720. Presumptions relevant to sound recordings
in which performances are fixed

In proceedings brought by virtue of this Part with respect to a sound recording in which a performance is fixed, where copies of the sound recording as issued or made avaiIable to the public bear a statement

(a)

that a named person was a performer in the performance; or

(b)

that a named group of performers were the performers in

the performance, the statement is admissible as evidence of the facts stated and is presumed to be correct until the contrary is proved.".

67. Cross-heading substituted

The cross-heading before section 273 is repealed and the fol1owing substituted-s"Circumvention of effective technologicaI measures".

68. Section substituted

Section 273 is repealed and the fol1owing substituted

"273. Interpretation of sections 273
to 273H

(1) In sections 273A to 273H, "circumvent" (m~), in relation to an effective technological measure which has been applied in relation to a copyright work

(a)

where the use ofthe work is controlled through the measure by the copyright owner of the work, means to circumvent the measure without the authority of the copyright owner;

(b)

where the use ofthe work is controlled through the measure by an exclusive licensee of the copyright owner of the work, means to circumvent the measure without the authority of the exclusive licensee; or

(c)

where the use ofthe work is controlled through the measure by any other person who, with the licence of the copyright owner of the copyright work

(i)

issues to the public copies of the work;

(ii)

makes available to the public copies of the work; or

(iii) broadcasts the work, or includes the work in a cable

programme service, means to circurnvent the measure without the authority of that other person.

(2)

For the purposes of this section and sections 273A to 273H, where a technological measure has been applied in re1ation to a copyright work, the measure is referred to as an effective technological measure if the use of the work is controlled by any person referred to in subsection (l)(a), (b) or (c) through

(a)

an access control or protection process (including the encryption, scrambling and any other transformation of the work) which achieves the intended protection of the work in the normal course of its operation; or

(b)

a copy controi mechanism which achieves the intended protection of the work in the normal course of its operation.

(3)

In subsection (2)-

Ca) "technological measure" (5flf-ttmMii:) rneans any technology, device, component or means which is designed, in the normaI course of its operation, to protect any description of copyright work;

Cb) the reference to protection of a copyright work is to the prevention or restriction of acts which are done without the licence of the copyright owner of the work and are restricted by the copyright in the work;

Cc) the reference to use of a copyright work does not extend to any use of the work which is outside the scope of the acts restricted by the copyright in the work.".

69. Sections added

The folIowing are added immediate1y after section 273

"273A. Rights and remedies in respect of circumvention of effective technological measures

(1)

Subject to sections 273D and 273H, this section applies where an effective technological measure has been applied in relation to a copyright work, and a person does any act which circumvents the measure, knowing, or having reason to believe, that he is doing an act which circumvents the measure.

(2)

The fol1owing persons have the same rights and remedies against the person referred to in subsection (1) as a copyright owner has in respect of an infringement of copyright

(a)		the copyright owner of the work;
(b)		an	exclusive licensee of the copyright owner of the work;
		and
(c)		any other person who, with the licence of the copyright
		owner of the work
		(i) issues to the public copies of the work;
		(ii) makes available to the public copies of the work; or
		(iii) broadcasts the work,			or includes the work in a cable
		programme service.
(3)	The	rights and remedies		conferred by subsection (2)		on	the

copyright owner, the exclusive licensee and the person referred to in subsection (2)(c) are concurrent.

(4)

Sections 112(3) and 113(1), (4), (5) and (6) apply, with the necessary modifications, in proceedings in relation to the copyright owner, the exclusive licensee and the person referred to in subsection (2)(c), as they apply in proceedings in relation to a copyright owner and an exclusive licensee with concurrent rights and remedies.

(5)

Sections 115, 116 and 117 (presumptions as to certain matters relating to copyright) apply, with the necessary modifications, in proceedings instituted under this section, as they apply in proceedings instituted under Part II (copyright).

273B. Rights and remedies in respect of devices and services designed to circumvent effective technologicaI measures

(1)

Subject to sections 273E and 273H, this section applies where an effective technological measure has been applied in relation to a copyright work, and a person

(a)

makes, imports, exports, sells or lets for hire, offers or exposes for sale or hire, or advertises for sale or hire, any relevant device;

(b)

exhibits in public, possesses or distributes any relevant device for the purpose of or in the course of any trade or business;

(c)

distributes (otherwise than for the purpose of or in the course of any trade or business) any relevant device to such an extent as to affect prejudicially the owner of the copyright; or

(d)

provides any relevant service.

(2)

In subsection (n( �/span>

"relevant device" (~~*1tt:), in relation to the effective technological measure referred to in that subsection, means any device, product, component or means

(a)

which is promoted, advertised or marketed for the purpose of the circumvention of the measure;

(b)

which has only a limited commercially significant purpose or use other than to circumvent the measure; or

(c)

which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of the measure;

I

"relevant service" (~IUJB[tf~), in relation to the effective technological measure referred to in that subsection, means any service

(a)

which is promoted, advertised or marketed for the purpose of the circumvention of the measure;

(b)

which has only a limited commercially significant purpose or use other than to circumvent the measure; or

(c)

which is performed for the purpose of enabling or facilitating the circumvention of the measure.

(3)

The following persons have the same rights and remedies against the person referred to in subsection (l) as a copyright owner has in respect of an infringement of copyright

(a)

the copyright owner of the work;

(b)

an exc1usive licensee of the copyright owner of the work; and

(c)

any other person who, with the licence of the copyright owner of the work

(i)

issues to the public copies of the work;

(ii)

makes available to the public copies of the work; or

(iii) broadcasts the work, or inc1udes the work in a cable programme service.

(4)

The rights and remedies conferred by subsection (3) on the copyright owner, the exclusive licensee and the person referred to in subsection (3)(c) are concurrent.

(5)

Sections 112(3) and 113(1), (4), (5) and (6) apply, with the necessary modifications, in proceedings in re1ation to the copyright owner, the exclusive licensee and the person referred to in subsection (3)(c), as they apply in proceedings in re1ation to a copyright owner and an exc1usive licensee with concurrent rights and remedies.

(6)

The copyright owner, the exclusive licensee and the person referred to in subsection (3)(c) have the same rights and remedies under section 109 (order for delivery up) in relation to any device, product, component or means which a person has in his possession, custody or control with the intention that it is to be used to circumvent effective technological measures, as a copyright owner has in re1ation to an infringing copy.

O) The rights and remedies conferred by subsection (6) on the copyright owner, the exclusive licensee and the person referred to in subsection (3)(c) are concurrent.

(8)

Section 113(7) (order as to exercise of rights by copyright owner where exclusive licensee has concurrent rights) applies, with the necessary modifications, in respect of anything done under section 109 by virtue of subsection (6), in relation to the copyright owner, the exclusive licensee and the person referred to in subsection (3)(c), as it applies, in respect of anything done under section 109, in relation to a copyright owner and an exclusive licensee with concurrent rights and remedies.

(9)

Section 111 (order as to disposal of infringing copy or other article) applies, with the necessary modifications,in re1ation to the disposal of anything delivered up under section 109 by virtue of subsection (6).

(10)

Sections 115, 116 and 117 (presumptions as to certain matters relating to copyright) apply, with the necessary modifications, in proceedings instituted under this section, as they apply in proceedings instituted under Part II (copyright).

273C. Offences in relation to circumvention of effective technological measures

Cl) Subject to sections 273F and 273H, where an effective technological measure has been applied in relation to a copyright work, a person commits an offence if he

(a)

makes for sale or hire any relevant device;

(b)

imports into Hong Kong for sale or hire any relevant device;

(c)

exports from Hong Kong far sale or hire any relevant device;

(d)

sells, lets far hire, or offers or exposes far sale or hire any relevant device far the purpose of or in the course of any trade or business;

(e)

exhibits in public or distributes any relevant device for the purpose of or in the course of any trade or business which consists of dealing in circumvention devices;

(j)

possesses any relevant device with a view to

(i)

its being sold or let far hire by any person for the purpose of or in the course of any trade or business; or

(ii)

its being exhibited in public or distributed by any person for the purpose of or in the course of any trade or business which consists of dealing in circumvention devices; or

(g)

provides any relevant service far the purpose of or in the course of a circumvention business.

(2) In subsection (n( �/span>

"circumvention business" (~5H\!H~I~) means a business, conducted far profit, which includes the offering to the public of services which enable or facilitate the circumvention of effective technological measures;

"circumvention device" (m~fi{Lt) means any device, product, component or means

(a)

which is promoted, advertised or marketed far the purpose of the circumvention of effective technologìcal measures;

(b)

which has only a limited commercially significant purpose or use other than to circumvent effective technological measures; or

(c)

which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures;

"dealing in" (#J[i~) means selling, letting for hire, or distributing far profit or reward; "relevant device" (:ff!mfi1Lt), in relation to the effective technological measure referred to in that subsection

(a)

subject to paragraph (b), means any device, product, component or means

(i)

which is promoted, advertised or marketed for the purpose of the circumvention of the measure;

(ii)

which has only a limited commercially significant purpose or use other than to circumvent the measure; or

(iii) which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of the measure;

(b)

does not include any unauthorized decoder referred to in section 6, or any decoder referred to in section 7, of the Broadcasting Ordinance (Cap. 562);

"relevant service" (~~~liJ~), in relation to the effective technological measure referred to in that subsection, means any service

(a) which is promoted, advertised or marketed for the purpose of the circumvention of the measure; Cb) which has only a limited commercially significant purpose or use other than to circumvent the measure; or

Cc) which is performed for the purpose of enabling or facilitating the circumvention of the measure.

(3) A person who commits an offence under subsection Cl) is liable on conviction on indictment to a fine of $500,000 and to imprisonment for 4 years.

C4) It is a defence for the person charged with an offence in respect of an effective technological measure under subsection (1) to prove that he did not know and had no reason to believe that the relevant device or relevant service which is the subject of the offence enabled or facilitated the circumvention of the measure.

273D. Exceptions io section 273A

(1) Section 273A does not apply to an act which circumvents an effective technological measure if-Ca) the measure has been applied in relation to a computer program;

Cb) the act is done with respect to the identification or analysis of particular elements of the computer program that are not readily available to the person who does the act;

Cc) the act is done for the sole purpose of achieving interoperability of an independentlycreated computer program with the computer program or another computer program;

Cd) the copy of computer program in relation to which the act is done is not an infringing copy; and Ce) the act of identification or analysis referred to in paragraph

(b) does not constitute an infringement of copyright.

(2)

Section 273A does not apply to an act which circumvents an effective technological measure if

(a)

the act is done by or under the authority of the owner or operator of a computer, computer system or computer network; and

(b)

the act is done far the sole purpose of testing, investigating or correcting a security flaw or' vulnerability of the computer, computer system or computer network, as the case may be.

(3)

Section 273A does not apply to an act which circumvents an effective technological measure if the act is dane far the sole purpose of research into cryptography and-

Ca) where the research is conducted by or on behalf of a specified educational establishment, or for the purposes of giving or receiving instruction in a specified course of study in the field of cryptography provided by a specified educational establishment

(i)

the research does not constitute an infringement of copyright;

(ii)

it is necessary for the act to be dane in order to conduct the research; and

(iii) the information derived from the research is not disseminated to the public except in a specified manner; or

(b) in any other case

(i)

the research does not constitute an infringement of copyright;

(ii)

it is necessary far the act to be done in order to conduct the research; and

(iii) the act or the dissemination to the public of information derived from the research does not affect prejudicial1y the copyright owner.

(4) In subsection (3)"specified educational establishment" (ffi 1j;j~1f~1t) means

(a)

an educational establishment specified in section 4, 6, 7, 8, 9, 12, 14 or 15 of Schedule 1; or

(b)

Hong Kong Shue Yan University registered under the Post Secondary Colleges Ordinance (Cap. 320);

"specified manner" (ffiflj3j]:rt), in relation to the dissemination to the public of information derived from a research into cryptography

(a)

means a manner which is reasonably calculated to advance the state of knowledge or development of cryptography or related technology; and

(b)

inc1udes dissemination of the information in a journal or at a conference the target readers or audiences of which are primarily persons engaged in, or pursuing a course of study in, the field of cryptography or related technology.

(5)

Section 273A does not apply to an act which circumvents an effective technological measure if

(a)

the measure, or the copyright work in relation to which the measure has been applied, has the capability to collect or disseminate personally identifying information which tracks and records the manner of a person's use of a computer network without providing conspicuous notice of such collection or dissemination to the person;

(b)

the act is done for the sole purpose of identifying or disabling the function of the measure or work, as the case may be, in collecting or disseminating personally identifying information; and

(c)

the act does not affect the ability of any person to gain access to any work.

(6)

Section 273A does not apply to an act which circumvents an effective technological measure if

(a)

a person does the act when using a technology, product or device; and

(b)

the sole purpose ofthe technology, product or device, as the case may be, is to prevent access of minors to harrnful materials on the Internet.

(7)

Section 273A does not apply to an act which circumvents an effective technological measure if

(a)

the measure has been applied in relation to a copyright work of any description issued to the public in a physical article;

(b)

the measure contains regional coding or any other technology, device, component or means which has the effect of preventing or restricting access to the work for the purpose of controlling market segmentation on a geographical basis;

(c)

the act is done far the sole purpose of overcoming the regional coding, technology, device, component or means, as the case may be, contained in the measure so as to gain access to the work; and

(d)

the copy of the work in relation to which the act is done

(i)

is not an infringing copy; or

(ii)

if it is an infringing copy, is an infringing copy by virtue only of section 35(3) and was lawfully made in the country, territory or area where it was made.

(8)

Section 273A does not apply to an act which circumvents an effective technological measure if

(a)

the measure has been applied in relation to a copy of any description mentioned in section 50(1), 51(1) or 53;

(b)

the act of circumvention is done by the librarian or archivist of a specified library or archive; and

(c)

the act is done for the sole purpose of the doing of any of the acts permitted under sections 50, 51 and 53.

(9)

Section 273A does not apply to an act which circumvents an effective technological measure if the act is done by, or on behalf of, law enforcement agencies for the purpose of the prevention, detection or investigation of an offence, or the conduct of a prosecution.

273E. Exceptions to section 273B

(1) In this section

"relevant device" (:ffImHf-t) means any device, product, component or means

(a)

which is promoted, advertised or marketed for the purpose of the circumvention of effective technological measures;

(b)

which has only a limited commercially significant purpose or use other than to circumvent effective technological measures; or

(c)

which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures;

"relevant service" (1flmmzJ!) means any service-Ca) which is promoted, advertised or marketed for the purpose of the circumvention of effective technological measures; Cb) which has only a limited commercially significant purpose or use other than to circumvent effective technological measures; or

Cc) which is performed for the purpose of enabling or facilitating the circumvention of effective technological measures.

(2)

Section 273B does not apply if

(a)

a person works collaboratively with another person to identify or analyse particular elements of a computer program for the sole purpose of achieving interoperability of an independently created computer program with the computer program or another computer program; and

(b)

that person, for the purpose of enabling that other person to do any relevant act

(i)

makes or imports any relevant device for that other person;

(ii)

sells, lets for hire, exports or distributes any relevant device to that other person;

(iii) possesses any relevant device; or (iv) provides any relevant service to that other person.

(3)

In subsection (2), "relevant act" (1§1m11=~) means

(a)

an act which circumvents an effective technological measure and to which section 273A does not apply by virtue of section 273D(1); or

(b)

an act done outside Hong Kong which, if done in Hong Kong, would constitute an act referred to in paragraph (a).

(4)

Section 273B does not apply if

(a)

a person works collaboratively with another person to test, investigate or correct a security flaw or vulnerability of a computer, computer system or computer network under the authority of the owner or operator of the computer, computer system or computer network, as the case may be; and

(b)

that person, for the purpose of enabling that other person to do any relevant act

(i)

makes or imports any relevant device for that other person;

(ii)

sells, lets for hire, exports or distributes any relevant device to that other person;

(iii) possesses any relevant device; or (iv) provides any relevant service to that other person.

(5)

In subsection (4), "relevant act" (1§~fF~) means

(a)

an act which circumvents an effective technological measure and to which section 273A does not apply by virtue of section 273D(2); or

(b)

an act done outside Hong Kong which, if done in Hong Kong, would constitute an act referred to in paragraph (a).

(6)

Section 273B does not apply if

(a)

a person works collaboratively with another person to conduct research into cryptography; and

(b)

that person, for the purpose of enabling that other person to do any relevant act

(i)

makes or imports any relevant devicc for that other person;

(ii)

sells, lets for hire, exports or distributes any relevant device to that other person;

(iii) possesses any relevant device; or . (iv) provides any relevant service to that other person.

(7)

In subsection (6), "relevant act" (~~flF:/ffi;) means

(a)

an act which circurnvents an effective technologìcal measure and to which section 273A does not apply by virtue of section 273D(3); or

(b)

an act done outside Hong Kong which, if done in Hong Kong, wou1d constitute an act referred to in paragraph Ca).

(8)

Section 273B does not apply to a relevant device or relevant service if

(a)

an effective technologìcal measure, or a copyright work in relation to which an effective technologìcal measure has been applied, has a function in collecting or disseminating personally identifying information which tracks and records the manner of a person's use of a computer network; and

(b)

the sole purpose of the device or service, as the case may be, is to identify or disable that function of the measure or work, as the case may be.

(9)

Section 273B does not apply to a relevant device if-

Ca) the relevant device is incorporated, or is intended to be incorporated, into a technology, product or device; and

(b) the sole purpose of the technology, product or device, as the case may be, is to prevent access of minors to hannful materials on the Internet.

(10)

Section 273B does not apply to a relevant service if the sole purpose of the service is to prevent access of minors to harrnful materials on the Internet.

(11)

Section 273B does not apply to a relevant device or relevant service if

(a)

an effective technologìcal measure has been applied in relation to a copyright work issued to the public in a physical article;

(b)

the measure contains regional coding or any other technology, device, component or means which has the effect of preventing or restricting access to the work for the purpose of controlling market segmentation on a geographical basis; and

(c)

the sole purpose of the relevant device or relevant service, as the case may be, is to overcome the regional coding, technology, device, component or means, as the case may be, contained in the measure.

(12)

Section 273B does not apply to an act done by, or on behalf of, law enforcement agencies for the purpose of the prevention, detection or investigation of an offence, or the conduct of a prosecution.

273F. Exceptions to section 273C

(1) In this section

"relevant device" (:ffwmff.1!f) means any device, product, component or means

(a)

which is promoted, advertised or marketed for the purpose of the circumvention of effective technological measures;

(b)

which has only a limited commercially significant purpose or use other than to circumvent effective technological measures; or

(c)

which is primarily designed, produced or adapted for the purpose of enabling or facilitating the circumvention of effective technological measures;

"relevant service" (:ff~ijlZr~) means any service

(a)

which is promoted, advertised or marketed for the purpose of the circumvention of effective technological measures;

(b)

which has only a limited commercial1y significant purpose or use other than to circumvent effective technological measures; or

(c)

which is performed for the purpose of enabling or facilitating the circurnvention of effective technological measures.

(2) -Section 273C does not apply if

(a)

a person works collaboratively with another person to identify or analyse particular elements of a computer program for the sole purpose of acbieving interoperability of an independently created computer program with the computer program or another computer program; and

(b)

that person, for the purpose of enabling that other person to do any relevant act

Ci) makes or imports any relevant device for that other . person;

(ii) sells, lets for hire, exports or distributes any relevant device to that other person;

(iii) possesses any relevant device with a view to selling, letting for hire or distributing the device to that other person; or

(iv) provides any relevant service to that other person.

(3)

In subsection (2), "relevant act" (~~11=~) means

(a)

an act which circumvents an effective technological measure and to which section 273A does not apply by virtue of section 273D(1); or

(b)

an act done outside Hong Kong which, if done in Hong Kong, would constitute an act referred to in paragraph (a).

(4)

Section 273C does not applyif-i

(a)

a person works collaboratively with another person to test, investigate or correct a security flaw or vulnerability of a computer, computer system or computer network under the authority of the owner or operator of the computer, computer system or computer network, as the case may be; and

(b)

that person, for the purpose of enabling that other person to do any relevant act

(i)

makes or imports any relevant device for that other person;

(ii)

sells, lets for hire, exports or distributes any relevant device to that other person;

(iii) possesses any relevant device with a view to selling, . letting for hire or distributing the device to that other person; or (iv) provides any relevant service to that other person.

(5)

In subsection (4), "relevant act" (~~fF~) means

(a)

an act which circumvents an effective technological measure and to which section 273A does not apply by virtue of section 273D(2); or

(b)

an act done outside Hong Kong which, if done in Hong Kong, would constitute an act referred to in paragraph (a).

(6)

Section 273C does not apply if

(a)

a person works collaboratively with another person to conduct research into cryptography; and

(b)

that person, for the purpose of enabling that other person to do any relevant act

(i)

makes or imports any relevant device for that other person;

(ii)

sells, lets for hire, exports or distributes any relevant device to that other person;

(iii) possesses any relevant device with a view to selling, letting for hire or distributing the device to that other person; or (iv) provides any relevant .service to that other person.

(7)

In subsection (6), "relevant act" (fflmfF1%-) means

(a)

an act which circumvents an effective technological measure and to which section 273A does not apply by virtue of section 273D(3); or

(b)

an act done outside Hong Kong which, if done in Hong Kong, would constitute an act referred to in paragraph (a).

(8)

Section 273C does not apply to a relevant device or relevant service if

(a)

an effective technological measure, or a copyright work in relation to which an effective technological measure has been applied, has a function in collecting or disseminating personally identifying information which tracks and records the manner of a person's use of a computer network; and

(b)

the sole purpose of the device or service, as the case may be, is to identify or disable that function of the measure or work, as the case may be.

(9)

Section 273C does not apply to a relevant device if

(a)

the relevant device is incorporated, or is intended to be incorporated, into a technology, product or device; and

(b)

the sole purpose of the technology, product or device, as the case may be, is to prevent access of minors to harmful materials on the Internet.

Cl O) Section 273C does not apply to a relevant service if the sole purpose of the service is to prevent access of minors to harmful materials on the Internet.

(11)

Section 273C does not apply to a relevant device or relevant service if

(a)

an effective technological measure has been applied in relation to a copyright work issued to the public in a physical article;

(b)

the measure contains regional coding or any other technology, device, component or means which has the effect of preventing or restricting access to the work for the purpose of controlling market segmentation on a geographical basis; and

(c)

the sole purpose ofthe relevant device or relevant service, as the case may be, is to overcome the regional coding, technology, device, component or means, as the case may be, contained in the measure.

(12)

Section 273C does not apply to an act done by, or on behalf of, law enforcement agencies for the purpose of the prevention, detection or investigation of an offence, or the conduct of a prosecution.

273G. Application of sections 273, 273A,
273B, 273D and 273E to
performances

Sections 273, 273A(I), (2), (3) and (4), 273B(I), (2), (3), (4), (5), (6), (7), (8) and (9), 273D and 273E apply, with the necessary modifications, in relation to

(a)

an unfixed performance or a fixation of a performance;

(b)

a performer or a person having fixation rights in relation to a performance; and

(c)

the rights conferred by Part III on a performer or a person having fixation rights in relation to a performance.

273H. Exceptions to sections 273A, 273B,
273C and 273G

The Secretary for Commerce and Economie Development may, by notice published in the Gazette, exclude from the application of any provisions of sections 273A, 273B, 273C and 273G any work or performance, class of works or performances or class of devices, products, components, means or services if he is satisfied

(a)

that any use of or dealing with the work or performance, class of works or performances or class of devices, products, components, means or services, as the case may be, does not constitute or lead to an infringement of copyright or the rights conferred by Part III (rights in performances); and

(b)

that any such use or dealing has been, or is likely to be, adversely impaired or affected as a result of the application of the provisions.".

70. Rights and remedies in respect of unlawfuI acts to interfere with rights management information

Section 274 is amended by adding

"(2A) The person who provides rights management information does not have the rights and remedies against the person referred to in subsection (2) unless the second-mentioned person, when doing an act referred to in subsection (2)(a) or (b), knows or has reason to believe that by doing the act he is inducing, enabling, facilitating or concealing an infringement of copyright or an infringement of rights conferred by Part III (rights in performances).

(2B) If the copyright owner of a work to which rights management information is attached, or the copyright owner's exclusive licensee, is not the person who provides the rights management information,-the copyright owner or the exclusive licensee, as the case may be, has the same rights and remedies as the person who provides the rights management information has against the person referred to in subsection (2).

(2e) The rights and remedies conferred by subsection (1) on the person who provides rights management information and the rights and remedies conferred by subsection (2B) on the copyright owner and his exclusive licensee are concurrent.

(2D) Sections 112(3) and 113(1), (4), (5)and (6) apply, with the necessary modifications, in proceedings in relation to the person who provides rights management information, the copyright owner and the exclusive licensee, as they apply in proceedings in relation to a copyright owner and an exclusive licensee with concurrent rights and remedies.

(2E) Sections 115, 116 and 117 (presumptions as to certain matters relating to copyright) apply, with the necessary modifications, in proceedings instituted under this section, as they apply in proceedings instituted under Part II (copyright).

(2F) This section, except subsection (2E), applies, with the necessary modifications, in relation to

(a)

a fixation of a performance;

(b)

a performer or a person having fixation rights in relation to a performance; and

(c)

the rights conferred by Part III on a performer or a person having fixation rights in relation to a performance.".

71. TransitionaI provisions and savings

(1)

Section 282 is amended, in the heading, by adding "in relation to amendments effected by the Copyright (Amendment) Ordinance 2003" after "sanngs".

(2)

Section 282 is amended by adding "by the Copyright (Amendment) Ordinance 2003 (27 of 2003)" after "this Ordinance".

72. Section added

The fol1owing is added

"283. Transitional provisions and savings
in relation to amendrnents effected
by the Copyright (Amendrnent)
Ordinance 2007

(1)

In tbis section, "2007 Amendment Ordinance" «2007 &f:f~tr{~ WU}) means the Copyright (Amendment) Ordinance 2007 (15 of 2007).

(2)

Schedule 7 contains transitional provisions and savings in relation to certain amendments made to this Ordinance by the 2007 Amendment Ordinance.

(3)

The Cbief Executive in Council may make regulations containing transitional provisions and savings consequent on the enactment of the 2007 Amendment Ordinance.

(4)

Without prejudice to the generality of subsection (3), the regulations may in particular provide for

(a)

the application of provisions of this Ordinance as amended by the 2007 Amendment Ordinance; or

(b)

the continued application of provisions of this Ordinance as in force immediately before the commencement of any provisions of the 2007 Amendment Ordinance,

in connection with any matter specified in the regulations.

(5)

Regulations made under this section may, if they so provide, be deemed to have come into operation on a date earlier than the date on which they are published in the Gazette but not earlier than the date on which the 2007 Amendment Ordinance is published in the Gazette.

(6)

To the extent that any regulations come into operation on a date earlier than the date on which they are published in the Gazette, those regulations shall be construed so as not to

(a)

affect, in a manner prejudicial to any person, the rights of that person existing before the date on wbich the regulations are published in the Gazette; or

(b)

impose liabilities on any person in respect of anything done, or omitted to be done, before that date.

(7)

In the event of an inconsistency between any regulations made under this section and the provisions of Schedule 7, Schedule 7 shal1 prevail to the extent of the inconsistency.".

73. Educational establishments

Cl) Schedule 1 is amended, within the square brackets, by repealing "s. 195" and substituting "ss. 40A, ll9B, 195 & 273D".

(2) Schedule 1 is amended by repealing section 15 and substituting

"15. The Open University of Hong Kong established by The Open University of Hong Kong Ordinance (Cap. 1145).".

74. Schedule lA added The following is added

"SCHEDULE lA [s. 198]

BODIES AND AUTHORlTIES SPECIFIED FOR
PURPOSES OF DEFINITION OF "SPECIFIED
COURSE OF STUDY"

l. Curriculum Development Counci1 the members of which are appointed by the Chief Executive.".

75. Schedule 7 added The following is added

"SCHEDULE 7 [s. 283]

TRANSITIONAL PROVISIONS AND SAVINGS IN RELATION TO
AMENDMENTS EFFECTED BY THE COPYRIGHT
(AMENDMENT) ORDINANCE 2007
(15 OF 2007)

PART l
INTRODUCTORY

1. Interpretation

(1) In this Schedule

"2007 Amendment Ordinance" ((2007 1f1~Jtr1~'Wtl~) means the Copyright (Amendment) Ordinance 2007 (15 of 2007); "Suspension Ordinance" ((!T~1~'Wtl~) means the Copyright (Suspension of Amendments) Ordinance 2001 (Cap. 568).

(2) Expressions used in this Schedule which are defined for the purposes of Part II (copyright) and Part IIIA (performers' moral rights) of this Ordinance have the same meaning as in those Parts.

PART 2

ACTS PERMITTED IN RELATION TO COPYRIGHT
WORKS AND PERFORMANCES

2. Savings for certain existing agreements

Nothing in section 13, 14, 15, 16, 17, 21, 61, 62, 63 or 65 of the 2007 Amendment Ordinance affects a licence or agreement made before the commencement date of that section.

PART 3

RENTAL RIGHT OF COPYRIGHT OWNERS AND PERFORMERS

Division l-TransitionaI provisions and savings
in relation to amendrnents effected by section 6
of the 2007 Amendrnent Ordinance (insofar as
it reIates to section 25(1)(c), (e)
and (f) of this Ordinance)

3. GeneraI provisions

Cl) Subject to sections 4 and 5 of this Schedule, section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(1)(c), (e) and (j) of this Ordinance) applies to copyright works made before, on or after the commencement date of that section.

(2) No act done before the commencement date of section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(1)(c), (e) and (j) of this Ordinance) shall be regarded as an infringement of any new right arising by virtue of that section.

4. New rentaI right: effect of pre-commencement
authorization of copying

Where-

Ca) the owner or prospective owner of copyright in any work has, before the commencement date of section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(1)(c),

(e) and (f) of this Ordinance), authorized a person to make a copy of the work; and

(b) a new right arises by virtue of that section in relation to that

copy, the new right shall vest on the commencement date of that section in the person so authorized, subject to any agreement to the contrary.

5. Savings for existing stocks

(1)

Any new right arising by virtue of section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(1)(c) of this Ordinance) does not apply to a copy of a film acquired by a person before the commencement date of that section for the purpose of renting it to the public.

(2)

Any new right arising by virtue of section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(l)(e) and (j) of this Ordinance) does not apply to a copy of a comic book acquired by a person before the commencement date of that section for the purpose of renting it to the public.

Division 2-TransitionaI provisions and savings
in relation to amendrnents effected by section 6
of the 2007 Amendment Ordinance (insofar as
it relates to section 25(1)(d) of
tbis Ordinance)

6. GeneraI provisions

(1)

Subject to sections 7 and 8 of this Schedule, section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(1)(d) of this Ordinance) applies to copyright works made before, on or after the commencement date of that section. .

(2)

N o act done before the commencement date of section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(1)(d) of this Ordinance) shall be regarded as an infringement of any new right arising by virtue of that section.

7. New rental right: effect of pre-commencement
authorization of copying

Where

(a)

the owner or prospective owner of copyright in any work has, before the commencement date of section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(l)(d) of this Ordinance), authorized a person to make a copy of the work; and

(b)

a new right arises by virtue of that section in relation to that

copy, the new right shall vest on the commencement date of that section in the person so authorized, subject to any agreement to the contrary.

8. Savings for existing stocks

Any new right arising by virtue of section 6 of the 2007 Amendment Ordinance (insofar as it relates to section 25(l)(d) of this Ordinance) does not apply to a copy of a sound recording acquired by a person before the commencement date of that section for the purpose of renting it to the public.

Division 3-Transitional provisions and savings in relation
to amendments effected by section 51 of the
2007 Amendment Ordinance

9. GeneraI provisions

Cl) Subject to sections lO and Il of this Schedule, section 51 of the 2007 Amendment Ordinance applies to qualifying performances that take place before, on or after the commencement date of that section.

(2) No act done before the commencement date of section 51 of the 2007 Amendment Ordinance shall be regarded as an infringement of any new right arising by virtue of that section.

lO. New rentaI right: effect of pre-commencement authorization of copying

Where

(a) the owner or prospective owner of a performer's rights in a qualifying performance has, before the commencement date of section 51 of the 2007 Amendment Ordinance, authorized a person to make a copy of a recording of the performance; and

Cb) a new right arises by virtue of that section in relation to that

copy,

the new right shall vest on the commencement date of that section in the

person so authorized, subject to any agreement to the contrary.

11. Savings for existing stocks

Any new right arising by virtue of section 51 of the 2007 Amendment Ordinance does not apply to a copy of a sound recording of a qualifying performance acquired by a person before the commencement date of that section for the purpose of renting it to the public.

PART4

MORAL RIGHTS OF PERFORMERS

TransitionaI provisions and savings in relation to amendrnents effected by section 66 of the 2007 Amendrnent Ordinance

12. GeneraI provisions

No act done before the commencement date of section 66 of the 2007 Amendment Ordinance shall be regarded as an infringement of any new rights of performers arising by virtue of that section.

13. Savings for certain existing agreements

(1)

Except as otherwise expressIy provided-, nothing in section 66 of the 2007 Amendment Ordinance affects an agreement made before the commencement date of that section.

(2)

No act done in pursuance of an agreement referred to in subsection Cl) on or after the commencement date of section 66 of the 2007 Amendment Ordinance shall be regarded as an infringement of any new rights of performers arising by virtue of that section.

14. New moral rights of performers of Iive auraI performances

(1)

Any new rights of performers arising by virtue of section 66 of the 2007 Amendment Ordinance in respect of a live aural performance only subsist in a live aurai performance that takes pIace on or after the commencement date of that section.

(2)

Any new rights of performers arising by virtue of section 66 of the 2007 Amendment Ordinance in respect of a performance fixed in a sound recording only subsist if the performance concerned takes place on or after the commencement date of that section.

PART 5

INFRINGEMENT OF COPYRIGHT IN WORKS AND RIGHTS
IN PERFORMANCES

Division l-Transitional provisions and savings in relation to amendrnents effected by section 9(2) of the 2007 Amendment Ordinance

15. Exemption from criminalliability incurred in respect of copies of works imported before commencement of section 9(2) of the 2007 Amendment Ordinance

(n( �s "from the commencement date of section 9(2) of the 2007 Amendment Ordinance, a person shall not be liable to conviction for an offence under section 118 ofthis Ordinance in respect of an act done before, on or after that commencement date in relation to a copy of a work to which this subsection applies.

(2) Subsection (l) applies to a copy of a work imported into Hong Kong before the commencement date of section 9(2) of the 2007 Amendment Ordinance

(a)

which is an infringing copy by virtue on1y of section 35(3) of this Ordinance as in force immediately before that commencement date;

(b)

which was lawfully made in the country, territory or area where it was made; and

(c)

which, if imported into Hong Kong on or after that commencement date, wou1d, by virtue of section 35(4) of this Ordinance as amended by section 9(2) of the 2007 Amendment Ordinance, not be an infringing copy for the purposes of sections 118 to 133 (criminal provisions) of this Ordinance.

Division 2-Transitional provisions and savings in relation to amendrnents effected by section lO of the 2007 Amendment Ordinance

16. Application of section 35B of tbis
Ordinance to previously imported

copies

(1)

For the purpose of any act done on or after the commencement date of section lO of the 2007 Amendment Ordinance in relation to a copy of a work to which this subsection applies (including any act alleged to constitute an infringement of copyright or an offence under this Ordinance)

(a)

section 35B of this Ordinance shall have effect as if it had been enacted before the copy is imported into Hong Kong or acquired; and

(b)

the copy is, by virtue ofparagraph (a), not an infringing copy for the purposes of section 35(3) of this Ordinance unless, having regard to section 35B of this Ordinance, it would also be an infringing copy for the purposes of section 35(3) of this Ordinance if it were imported into Hong Kong or acquired on or after that commencement date.

(2)

Subsection (1) applies to a copy of a work imported into Hong Kong before the commencement date of section lO of the 2007 Amendment Ordinance

(a)

which is an infringing copy by virtue on1y of section 35(3) of this Ordinance as in force immediately before that commencement date; and

(b)

which was lawfully made in the country, territory or area where it was made.

(3)

For the avoidance of doubt, nothing in this section or in the 2007 Amendment Ordinance relieves any person from liability to civil action in relation to an infringement of copyright which occurred before the commencement date of section lO of the 2007 Amendment Ordinance.

17. Exemption from criminalliability previously incurred in respect of "parallel-imported" copies of works to which section 35B of tbis Ordinance applies

(l) As from the commencement date of section lO of the 2007 Amendment Ordinance, a person shall not be liable to conviction for an offence under section 118(1) of this Ordinance as in force immediately before that commencement date and read together with the Suspension Ordinance, in respect of an act done before that commencement date in relation to a copy of a work to which this subsection applies unless, having regard to section 35B of this Ordinance, the copy would also be an infringing copy for the purposes of section 35(3) of this Ordinance ifit were imported into Hong Kong or acquired on or after that commencement date.

(2) Subsection (1) app1ies to a copy of a work imported into Hong Kong before the commencement date of section lO of the 2007 Amendment Ordinance

(a)

which is an infringing copy by virtue on1y of section 35(3) of this Ordinance as in force immediately before that commencement date; and

(b)

which was 1awful1y made in the country, territory or area where it was made.

Division 3--Transitional provisions and savings in relation
to amendments effected by section 31 of the
2007 Amendment Ordinance

18. Application of section 118(2H)
of tbis Ordinance

For the avoidance of doubt, section 118(2H) of this Ordinance does not apply in re1ation to any act referred to in section 118(2A) of this Ordinance and done by a body corporate or a partnership before the commencement date of section 31(4) of the 2007 Amendment Ordinance.

19. Retrospective application of the exemption
and defence provided by section
118(2E), (2F), (2G), (3A) and
(3B) of tbis Ordinance

(1)

Section 118(2E), (2F), (2G), (3A) and (3B) of this Ordinance applies in proceedings to which this subsection applies, in the same manner as it applies in proceedings for an offence under section 118(2A) of this Ordinance.

(2)

Subsection (1) applies to proceedings for an offence under section 118(1)(d) of this Ordinance as in force immediately before the commencement date of section 31(4) of the 2007 Amendment Ordinance and read together with the Suspension Ordinance, in a case where the infringing copy to which the charge re1ates is an infringing copy of the kind described in section 2(2), (3), (4) or (5) of the Suspension Ordinance.

(3)

Subsection (1) does not apply to proceedings far an offence committed before l April 2001.

Division 4-TransitionaI provisions and savings in relation
to amendments effected by section 57 of tbe
2007 Amendment Ordinance

20. AppIication of section 229A of tbis
Ordinance to previously imported

fixations

(1)

Far the purpose of any act dane on or after the commencement date of section 57 of the 2007 Amendment Ordinance in relation to a fixation of a performance to which this subsection applies (inc1uding any act alleged to constitute an infringement of any of the rights conferred by Part III of this Ordinance)

(a)

section 229A of this Ordinance shall have effect as if it had been enacted before the fixation is imported into Hong Kong or acquired; and

(b)

the fixationjs, by virtue of paragraph (a), not an infringing fixation far the purposes of section 229(4) of this Ordinance unless, having regard to section 229A ofthis Ordinance, it would also be an infringing fixation for the purposes of section 229(4) of this Ordinance if it were imported into Hong Kong or acquired on or after that commencement date.

(2)

Subsection (1) applies to a fixation of a performance imported into Hong Kong before the commencement date of section 57 of the 2007 Amendment Ordinance->

(a)

which is an infringing fixation by virtue only of section 229(4) of this Ordinance as in force immediately before that commencement date; and

(b)

which was lawfully made in the country, territory or area where it was made.

(3)

For the avoidance of doubt, nothing in this section or in the 2007 Amendment Ordinance relieves any person from liability to civil action in relation to an infringement of any of the rights conferred by Part III of this Ordinance which occurred before the commencement date of section 57 ofthe 2007 Amendment Ordinance.".

PART 3

MISCELLANEOUS

Copyright (Suspension of Amendrnents)
Ordinance 2001

76. Repeal

The Copyright (Suspension of Amendments) Ordinance 2001 (Cap. 568) is repealed.

Organized and Serious Crimes Ordinance

77. Offences relevant to definitions of "organized crime" and "specified offence"

Schedule 1 to the Organized and Serious Crìmes Ordinance (Cap. 455) is amended, in paragraph 18, by adding "and which was lawfully made in the country, territory or area where it was made" after "section 35(3) of that Ordinance" where it twice appears.

Prevention of Copyright Piracy Ordinance

78. Time limit for prosecutions

Section 36D of the Prevention of Copyright Piracy Ordinance (Cap. 544) is amended by repealing everything after "commission of the offence" and substituting a full stop.