Copyright is a form of “Intellectual Property” right that offers protection to owners of original work. In other words, copyright serves to protect creativity. Copyright does not protect ideas, but only the expression or product of ideas. This right is automatically conferred when a work is created. Unlike other intellectual property rights such as patents, trademarks and industrial designs, you need not register a copyright in Hong Kong, in order to get legal protection. Since Hong Kong is an international trading center, Intellectual Property protection in general, including copyright, is of utmost importance to investors who wish to do business in a free and fair environment.

Related Topic: Guide to Intellectual Property Laws of Hong Kong

Hong Kong’s copyright law was initially governed by the UK Copyright Act 1956. However, this was replaced by the Hong Kong Copyright Ordnance that came into effect on 27 June 1997 and is the principal and comprehensive legislation governing copyright protection in Hong Kong. Subsequently, The Copyright Tribunal, an independent quasi-judicial body was established on 1 December 1997 under section 169 of the Copyright Ordinance and is a forum for resolving disputes in relation to the use of copyright materials.

What Constitutes Copyright Protection in Hong Kong?

Hong Kong’s new Copyright Ordinance that came into effect on 27 June 1997, provides comprehensive protection for recognised categories of literary, dramatic, musical and artistic works, films, television broadcasts, cable programs, and works made available to the public on the Internet. In relation to performances, persons who have exclusive recording contracts with performers are also entitled to protection. Additionally, copyright protection in Hong Kong is also extended to works of authors from any place in the world, or works first published anywhere in the world.

Any work that is original and recorded in material form is liable to copyright protection in Hong Kong. There is no registration nor other formalities that are required. Additionally, your copyright work is valid in other countries by virtue of Hong Kong being a member of an international copyright convention, treaty or organisation. Currently, Hong Kong is a member of the Berne Convention, Universal Copyright Convention, the Phonograms Convention and the World Trade Organisation – Agreement on Trade Related Aspects of Intellectual Property Rights.

Validity Period of Copyright

Copyright works in Hong Kong are valid for: the life of the author plus 50 years after his death for literary, artistic and dramatic or musical work; for photographs, sound recording, cinematograph film and broadcast, 50 years after their first release; while for typographical arrangement of a published edition, 25 years after the publication of that edition.

Copyright Ownership

The author of a work is the first owner of any copyright in it. As per the Copyright Ordinance of Hong Kong, the producer is the author of a sound recording, the publisher is the author of any published material, the producer and principal director are the authors of a film, the person making the broadcast are authors of the broadcast and the person providing the cable programme service is the author of a cable programme. However, in the case of work produced by an employee, copyright belongs to his employer. In the case of commissioned work, a person who commissions a work has the exclusive license to exploit the work just like an author. Note: The above mentioned general principles apply unless there is an agreement otherwise.

In Hong Kong, the owner of a work has exclusive control to copy the work, to issue copies of the work to the public, to rent copies of the work to the public, to make available copies of the work to the public, to perform or play or show the work to the public, to broadcast it to the public and to make an adaption of the work for the public.

Copyright Infringement

There are two types of infringement of copyright in Hong Kong:

1. Primary infringement
2. Secondary infringement

Primary infringement takes place when a person carries out or authorises an individual to carry out:

• The act of “copying” without the consent of the copyright owner. Copying of a work means reproducing the work (whether the whole work or a substantial part of the work) in any material form. This includes storing the work in any medium by electronic means or making copies which are transient or incidental to some other use of the work. Note: what constitutes as a substantial part of a work is determined by qualitative means rather than quantitative measures.
• The following acts without the consent of the copyright owner: the issue of copies of the work to the public, rental of work to the public, making available of copies to the public, performing, playing or showing of work in public, broadcasting or inclusion in a cable programme service, making adaptations or acts done in relation to adaptation

Secondary infringement takes place when a person carries out the following acts:

• Importing to or exporting from Hong Kong (apart for private or domestic use) infringing copies of a work
• Possessing or dealing with infringing copies of a work for the purposes of trade or business
• Providing means for making infringing copies of a work
• Permitting use of premises for infringing performance
• Provision of apparatus for infringing performance

An infringing copy is defined as the copy of a work that involved infringement of the copyright.

Certain acts under the Copyright Ordinance of Hong Kong are permissible and do not constitute infringement of copyright. Examples of such acts include: fair dealing for research and private study; criticism, review and news reporting, use of works in library and school.

Remedies for Infringement

If the copyright of a work is being infringed, the relevant copyright owner can take civil legal action against the infringer in order to get compensation/recover losses. Also, the copyright owner may seek an injunction order from the court to prevent further infringement. The Hong Kong copyright law also provides for the criminal enforcement of copyright. Copyright piracy, such as making of or possession of infringing articles for trade or business, may be subject to a maximum fine of HKD 50,000 per infringing article and a term of imprisonment of up to four years. Importing or exporting pirated articles is a criminal offence. Those who manufacture equipment for copyright piracy may also be liable to a fine of HKD 500,000 and a term of imprisonment of up to eight years. Parallel importation of articles that contain copyright works is not permitted (except for computer software products) and is a criminal offence during the 18 months commencing from the work’s first publication anywhere in the world.

Assignment and Licensing of Copyright

An assignment of copyright is the transfer of ownership of copyright from the assignor (i.e copyright owner) to the assignee (i.e. the new owner). An assignment of copyright is not effective unless it is in writing signed by or on behalf of the assignor. A licence of copyright on the other hand, does not involve transfer of copyright ownership. It is an agreement where the licensor (i.e. copyright owner) permits the licensee the right to carry out certain specific acts in relation to the work (e.g. to make copies of the work, or to distribute copies of the work in the market) for an agreed period of time. A licence can be exclusive or non-exclusive. To be effective, an exclusive licence must be in writing signed by or on behalf of the copyright owner.