Legislative Texts
COPYRIGHT ORDINANCE
Chapter 528
Long title
An Ordinance to restate the law of copyright, with amendments; to make provision as to the rights of performers and others in performances; to make provision with respect to devices designed to circumvent copy-protection of works, with respect to rights management information and with respect to the fraudulent reception of transmissions; and for connected purposes.
[The Ordinance, other than the definitions of “register”,
PRELIMINARY
Section 1 Short title, commencement and interpretation
(1) This Ordinance may be cited as the Copyright Ordinance. - (2)
- The following provisions shall come into operation on a day to be appointed by the Secretary for Trade and Industry by notice in the Gazette—
- (a)
- the definitions of “register”, “Registrar” and “registration” in section 141(4) ;
- (b)
- sections 142 to 149 ;
- (c)
- paragraph 5 of Schedule 4 .
- (3)
- The tables showing the provisions defining expressions used in Part II and Part III are set out in sections 199 and 239 respectively.
PART II COPYRIGHT
Section 2 Copyright and copyright works
DIVISION I SUBSISTENCE, OWNERSHIP AND DURATION OF COPYRIGHT
Introductory
(1) Copyright is a property right which subsists in accordance with this Part in the following descriptions of work—
Legislative Texts - (a) �
- original literary, dramatic, musical or artistic works;
- (b) �
- sound recordings, films, broadcasts or cable programmes; and
- (c) �
- the typographical arrangement of published editions.
- (2)
- In this Part “copyright work” means a work of any of those descriptions in which copyright subsists.
- (3)
- Copyright does not subsist in a work unless the requirements of this Part with respect to qualification for copyright protection are met (see section 177 and the provisions referred to there).
[cf. 1988 c. 48 s. 1 U.K.]
Section 3 Rights subsisting in copyright works - (1)
- The owner of the copyright in a work of any description has the exclusive right to do the acts specified in Division II as the acts restricted by the copyright in a work of that description.
- (2)
- In relation to certain descriptions of copyright work the following rights conferred by Division IV (moral rights) subsist in favour of the author or director of the work, whether or not he is the owner of the copyright—
Section 4 Literary, dramatic and musical works
Descriptions of work and related provisions
(1) In this Part—
�“dramatic work” includes a work of dance or mime;
�“literary work” means any work, other than a dramatic or musical work, which is written,
�
spoken or sung, and accordingly includes— - (a) �
- a compilation of data or other material, in any form, which by reason of the selection or arrangement of its contents constitutes an intellectual creation, including but not limiting to a table;
- (b) �
- a computer program; and
- (c) �
- preparatory design material for a computer program;
“musical work” means a work consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music.
(2) Copyright does not subsist in a literary, dramatic or musical work unless and until it is recorded, in writing or otherwise; and references in this Part to the time at which such a work is made are to the time at which it is so recorded.
Legislative Texts
(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.
[cf. 1988 c. 48 s. 3 U.K.]
Section 5
�Artistic works
�
In this Part—
�“artistic work” means—
� - (a) �
- a graphic work, photograph, sculpture or collage, irrespective of artistic quality;
- (b) �
- a work of architecture being a building or a model for a building; or
- (c)
- a work of artistic craftsmanship;
�“building” includes any fixed structure, and a part of a building or fixed structure;
�“graphic work” includes—
� - (a) �
- any painting, drawing, diagram, map, chart or plan; and
(b) any engraving, etching, lithograph, woodcut or similar work; “photograph” means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;
“sculpture” includes a cast or model made for purposes of sculpture. [cf. 1988 c. 48 s. 4 U.K.]
Section 6
�Sound recordings
� - (1)
- In this Part “sound recording” means—
- (a) �
- a recording of sounds, from which the sounds may be reproduced; or
- (b) �
- a recording of the whole or any part of a literary, dramatic or musical work, from which sounds reproducing the work or part may be produced,
regardless of the medium on which the recording is made or the method by which the sounds are reproduced or produced.
(2) Copyright does not subsist in a sound recording which is, or to the extent that it is, a copy taken from a previous sound recording.
[cf. 1988 c. 48 s. 5A U.K.]
Section 7
�Films
�
Legislative Texts - (1)
- In this Part “film” means a recording on any medium from which a moving image may by any means be produced.
- (2)
- The sound-track accompanying a film is to be treated as part of the film for the purposes of this Part.
- (3)
- Without prejudice to the generality of subsection (2) , where that subsection applies—
- (a) �
- references in this Part to showing a film include playing the film sound-track to accompany the film; and
- (b) �
- references to playing a sound recording do not include playing the film sound-track to accompany the film.
- (4)
- Copyright does not subsist in a film which is, or to the extent that it is, a copy taken from a previous film.
[cf. 1988 c. 48 s. 5B U.K.]
Section 8
�Broadcasts
� - (1)
- In this Part a “broadcast” means a transmission by wireless telegraphy of sounds or of visual images and sounds or of representations thereof which—
- (a) �
- is capable of being lawfully received by members of the public in Hong Kong or elsewhere; or
- (b) �
- is transmitted for presentation to members of the public in Hong Kong or elsewhere, otherwise than through a service for making available to the public of copies of works or fixations of performances.
- (2)
- An encrypted transmission is regarded as capable of being lawfully received by members of the public in Hong Kong or elsewhere only if decoding equipment has been made available to members of the public in Hong Kong or elsewhere by or with the authority of the person making the transmission or the person providing the contents of the transmission.
- (3)
- References in this Part to the person making a broadcast, broadcasting a work, or including a work in a broadcast are—
- (a) �
- to the person transmitting the programme, if he has responsibility to any extent for its contents; and
- (b) �
- to any person providing the programme who makes with the person transmitting it the arrangements necessary for its transmission,
and references in this Part to a programme, in the context of broadcasting, are to any item included in a broadcast. - (4)
- For the purposes of this Part the place from which a broadcast is made is the place where, under the control and responsibility of the person making the broadcast, the programme-carrying signals are introduced into an uninterrupted chain of communication (including, in the case of a satellite transmission, the chain leading to the satellite and down towards the earth).
- (5)
- References in this Part to the reception of a broadcast include reception of a broadcast relayed by means of a telecommunication system.
Legislative Texts
(6) Copyright does not subsist in a broadcast which infringes, or to the extent that it infringes, the copyright in another broadcast or in a cable programme.
[cf. 1988 c. 48 s. 6 U.K.]
Section 9
�Cable programmes
�
Remarks:
Amendments retroactively made - see 22 of 1999 s. 3
(1) In this Part—
“cable programme” means any item included in a cable programme service;
“cable programme service” means a service which consists wholly or mainly in the lawful sending by any person, by means of a telecommunication system (whether run by himself or by any other person), of sounds, visual images, other information or any combination of them either— - (a) �
- for lawful reception, otherwise than by wireless telegraphy, at 2 or more places in Hong Kong or elsewhere, whether they are so sent for simultaneous reception or at different times in response to requests made by different users of the service; or
- (b) �
- for lawful reception, by whatever means, at a place in Hong Kong or elsewhere for the purposes of their being presented there either to members of the public or to any group of persons,
and includes such a service that has as a component a multipoint microwave distribution system, but does not include the services excepted under subsection (2) ;
“interconnection” includes interconnection that involves a change of technical characteristics, format or parameters;
“sounds”, for the purposes of the exclusion in subsection (2)(a) , means speech or music or both except that they do not include, in relation to any telecommunication system, speech providing information for the purpose of facilitating the use of a telecommunication service provided by means of that system;
“visual images”, for the purposes of the exclusion in subsection (2)(a) , means visual images which are such that sequences of them may be seen as moving pictures. - (2)
- The following are excepted from the definition of “cable programme service“—
- (a) �
- a service (such as the services commonly known as video conferencing and video telephony) which consists wholly or mainly in the transmission of sounds or visual images or both by any person if it is an essential feature of the service that, while they are being transmitted, there will or may be transmitted from each place of reception, by means of the telecommunication system or (as the case may be) the part of it by means of which they are transmitted, sounds or visual images or both for reception by that person;
- (b) �
- a service for making available to the public of copies of works or fixations of performances, but excluding a service in which the transmission of moving visual representational images is an essential feature (such as the service commonly known as video-on-demand);
Legislative Texts - (c) �
- the running by a broadcaster of a telecommunication system in the case of which every transmission made by it is either—
- (i) �
- a transmission, by wireless telegraphy, from a transmitting station for general reception of sounds, visual images or signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images; or
- (ii) �
- a transmission within a single set of premises of sounds, visual images or such signals which are to be or have been so transmitted;
- (d) �
- the running of a telecommunication system in the case of which the only agency involved in the transmission of things thereby transmitted is light and the things thereby transmitted are so transmitted as to be capable of being received or perceived by the eye and without more;
- (e) �
- the running by a person of a telecommunication system which is not connected to another telecommunication system and in the case of which all the apparatus comprised therein is situated either—
- (i) �
- on a single set of premises in single occupation (other than a service operated as part of the amenities provided for residents or inmates of premises run as a business); or
- (ii) �
- in a vehicle, vessel, aircraft or hovercraft or in 2 or more vehicles, vessels, aircraft or hovercraft mechanically coupled together;
- (f) �
- the running by a single individual of a telecommunication system which is not connected to another telecommunication system and in the case of which—
- (i) �
- all the apparatus comprised therein is under his control; and
- (ii) �
- everything transmitted by it that is speech, music and other sounds, visual images, signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images, or signals serving for the actuation or control of machinery or apparatus is transmitted solely for his domestic purposes,
and references in paragraph (e) and this paragraph to another telecommunication system do not include references to such a system as is mentioned in paragraph (c) (whether run by a broadcaster or by any other person); or
(g) �in the case of a business carried on by a person, the running, for the purposes of the business, of a telecommunication system which is not connected to another telecommunication system and with respect to which the following conditions are satisfied— - (i) �
- that no person except the person carrying on the business is concerned in the control of the apparatus comprised in the system;
- (ii) �
- that nothing that is speech, music and other sounds, visual images, signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images, or signals serving for the actuation or control of machinery or apparatus is transmitted by the system by way of rendering a service to another;
Legislative Texts
(iii) �that, in so far as sounds or visual images are transmitted by the system, they are not transmitted for the purpose of their being heard or seen by persons other than the person carrying on the business or any employees of his engaged in the conduct thereof; - (iv) �
- that, in so far as signals serving for the impartation (whether as between persons and persons, things and things or persons and things) of any matter otherwise than in the form of sounds or visual images are transmitted by the system, they are not transmitted for the purpose of imparting matter otherwise than to the person carrying on the business, any employees of his engaged in the conduct thereof or things used in the course of the business and controlled by him; and
- (v) �
- that, in so far as signals of speech, music and other sounds are transmitted by the system, they are not transmitted for the purpose of actuating or controlling machinery or apparatus used otherwise than in the course of the business.
- (3)
- The Chief Executive in Council may by order amend subsection (2) so as to remove exceptions, subject to such transitional provision as appears to him to be appropriate. (Amended 22 of 1999 s. 3)
- (4)
- References in this Part to the inclusion of a cable programme or work in a cable programme service are to its transmission as part of the service; and references to the person including it are to the person providing the service.
- (5)
- Copyright does not subsist in a cable programme if—
- (a) �
- it is included in a cable programme service by reception and immediate re-transmission of a broadcast; or
- (b) �
- it infringes, or to the extent that it infringes, the copyright in another cable programme or in a broadcast.
[cf. 1988 c. 48 s. 7 U.K. & 1956 c. 74 s. 14A U.K.]
Section 10
�Published editions
� - (1)
- In this Part “published edition”, in the context of copyright in the typographical arrangement of a published edition, means a published edition of the whole or any part of one or more literary, dramatic or musical works.
- (2)
- Copyright does not subsist in the typographical arrangement of a published edition if, or to the extent that, it reproduces the typographical arrangement of a previous edition.
[cf. 1988 c. 48 s. 8 U.K.]
Section 11
�Authorship of work
�
Authorship and ownership of copyright - (1)
- In this Part “author”, in relation to a work, means the person who creates it.
- (2)
- That person is taken to be—
- (a) �
- in the case of a sound recording, the producer;
Legislative Texts - (b) �
- in the case of a film, the producer and the principal director;
- (c) �
- in the case of a broadcast, the person making the broadcast (see section 8(3) ) or, in the case of a broadcast which relays another broadcast by reception and immediate retransmission, the person making that other broadcast;
- (d) �
- in the case of a cable programme, the person providing the cable programme service in which the programme is included;
- (e) �
- in the case of the typographical arrangement of a published edition, the publisher.
- (3)
- In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author is taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.
- (4)
- For the purposes of this Part a work is of “unknown authorship” if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.
- (5)
- For the purposes of this Part the identity of an author is regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry; but if his identity is once known it shall not subsequently be regarded as unknown.
[cf. 1988 c. 48 s. 9 U.K.]
Section 12
�Works of joint authorship
� - (1)
- In this Part a “work of joint authorship” means a work made by the collaboration of 2 or more authors in which the contribution of each author is not distinct from that of the other author or authors.
- (2)
- A film is treated as a work of joint authorship unless the producer and the principal director are the same person.
- (3)
- A broadcast is treated as a work of joint authorship in a case where more than one person is to be taken as making the broadcast ( section 8(3) ).
- (4)
- References in this Part to the author of a work are, except as otherwise provided, construed in relation to a work of joint authorship as references to all the authors of the work.
[cf. 1988 c. 48 s. 10 U.K.]
Section 13
�First ownership of copyright
�
The author of a work is the first owner of any copyright in it, subject to sections 14 , 15 and
16.
[cf. 1988 c. 48 s. 11(1) U.K.]
Section 14
�Employee works
�
Legislative Texts - (1)
- Where a literary, dramatic, musical or artistic work, or a film, is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work subject to—
- (a) �
- any agreement to the contrary; and
- (b) �
- subsection (2) .
- (2)
- Subject to any agreement to the contrary, where such work is exploited by his employer or by someone else with the employer’s permission in a way that could not reasonably have been contemplated by the employer and the employee at the time of making the work, the employer shall pay an award to the employee in respect of such exploitation at such amount as agreed between the employer and the employee or failing an agreement, as determined by the Copyright Tribunal.
[cf. 1988 c. 48 s. 11(2) U.K.]
Section 15
�Commissioned works
� - (1)
- Where a work is made on the commission of a person and there is an agreement between the author and the commissioner of the work which expressly provides for the entitlement to the copyright, copyright in the commissioned work belongs to the person who is entitled to the copyright under the agreement.
- (2)
- Notwithstanding subsection (1) and sections 13 and 103 , the person who commissioned the work—
- (a) �
- has an exclusive licence to exploit the commissioned work for all purposes that could reasonably have been contemplated by the author and the person who commissioned the work at the time the work was commissioned; and
- (b) �
- has the power to restrain any exploitation of the commissioned work for any purpose against which he could reasonably take objection.
Section 16
�Government copyright, etc.
�
Sections 13 , 14 and 15 do not apply to Government copyright or Legislative Council copyright (see sections 182 and