Key takeaways

The latest amendments enable the Copyright Ordinance to catch up with the ever-changing digital age and align with international standards. These long-awaited updates help address some loopholes and uncertainties in the existing copyright law which result from advances in digital communications and technology. 

We will follow up on the implementation of the Amendment Ordinance as well as the upcoming round of legislative review exercise and keep you informed of any substantial updates with respect to the legislation and regulatory requirements. 

In more detail 

The legislative reform exercise of the copyright law began in 2006. After several unsuccessful attempts to have the amendment bills passed in the Legislative Council and years of consultations with different stakeholders, the major legislative measures under the Amendment Ordinance are primarily based on the Copyright (Amendment) Bill 2014. The major changes are outlined as follows: 

1. Introduction of a technology-neutral exclusive communication right for copyright owners to communicate their works to the public via any mode of electronic transmission

The Amendment Ordinance introduces a new right for copyright owners to control the communication of works to the public via any mode of electronic transmission including streaming. The existing regime under the Copyright Ordinance limits the owner's rights to "copying", "performing, showing or playing" or "broadcasting" the work to the public and does not expressly cover streaming, as no copying is involved in the streaming process. The Amendment Ordinance aims to bridge this gap with the newly introduced technology-neutral exclusive communication right. The effect of such update to the legislation is that copyright owners will be able to take actions against unauthorized communications of their copyright works to the public via any electronic means including streaming.

The amended law provides that a person is regarded as having communicated the work to the public if the person has determined the content of the communications. The mere provision of facilities to enable and facilitate the communication of the copyright work to the public, the mere forwarding of links of online materials to others, or the access of materials provided by others would not amount to communication of the work to the public under the new provisions.

2. Criminal sanctions against infringers making unauthorized communication of copyright works to the public 

The elements and penalties of the existing criminal provisions against making and dealing in infringing copies of works also apply to the new offence in relation to the unauthorized communication of works to the public. 

Under the new regime, the unauthorized communication of works to the public for profit or to the extent that it prejudicially affects the copyright owner is an offence. The court may look into all the circumstances of the specific case, including the economic prejudice experienced by the copyright owner. This is balanced with the statutory rule that requires the defendant to show that he or she did not know or had no reason to believe that the unauthorized communication would prejudicially affect the copyright owner. 

3. Wider scope of the copyright exceptions 

The Amendment Ordinance introduces new copyright exemptions for certain activities as set out below:

• Communicating copies of certain copyright works (including, for example, by way of online communication) by an educational establishment for certain educational purposes
• Use of a quotation from a copyright work, provided that (i) the work has been released or communicated to the public; (ii) the use of the quotation is fair dealing with the work; (iii) the extent of the quotation is no more than is required by the specific purpose for which it is used; and (iv) the use of the quotation is accompanied by a sufficient acknowledgement
• Fair dealing with a copyright work for the purpose of commenting on current events, provided that the dealing is accompanied by a sufficient acknowledgement
• Fair dealing with a copyright work for the purpose of parody, satire, caricature or pastiche
• OSPs to cache data for more efficient temporary transmission of fixation via a network
• Media shifting (i.e., converting to a different media format) for private and domestic use, provided that the original copy and the ownership of that copy is lawful

4. Introduction of "safe harbour" provisions for OSPs to help tackle online piracy 

The new "safe harbor" provisions facilitate OSPs' handling of alleged infringements and encourage collaborations between OSPs and copyright owners to combat online piracy. The new provisions will limit OSPs' potential liability for infringements occurring on their service platforms if certain conditions are fulfilled, which include taking reasonable steps to limit or stop the infringement in question as soon as practicable after the receipt of a valid notice of alleged infringement issued by the copyright owner or upon becoming aware of the infringement by itself. 

The new provisions do not require OSPs to monitor or actively identify infringing activities on their platforms or remove infringing materials in order to qualify for the defence. However, to motivate OSPs to work closely with copyright owners in combatting online piracy, OSPs are exempted from liability for claims made in respect of removal or disabling of materials provided that they have acted in good faith.  

A Code of Practice will be issued by the Government to supplement the Amendment Ordinance in relation to the compliance standards for OSPs and this will provide further guidance to OSPs as to their reliance on the "safe harbour" provisions.

5. Additional statutory factors for the court to consider when awarding additional damages in copyright infringements cases

Under the new regime, two additional factors that address the difficulties and harmful effects of copyright infringement in the digital environment can be taken into account by the court when determining whether additional damages should be granted in an infringement action. These factors are: (i) the unreasonable conduct of an infringer subsequent to the occurrence of infringing acts and notification about the infringement; and (ii) the likelihood of widespread circulation of infringing copies as a result of the infringement. 

The Government has expressed its intention to commence a new round of copyright legislative review exercise upon the implementation of the Amendment Ordinance. The main focus will be on the issues left unattended in this updated copyright regime, such as illicit streaming devices and judicial site blocking, voluntary copyright registration system, copyright issues in relation to artificial intelligence and data mining, and additional fair dealing exceptions.