[Guest post] Hong Kong – Amendments to Copyright Ordinance with effect from 1 May 2023

The IPKat has received and is pleased to host the following guest contribution by former InternKat James Kwong (Norton Rose Fulbright) on the recent Hong Kong copyright reform, which entered into force a few days ago. Here’s what James writes:

Hong Kong – Amendments to Copyright Ordinance with effect from 1 May 2023

by James Kwong

Following on previous posts on this issue (here and here), it is official: With effect from 1 May 2023, some major amendments to Hong Kong’s copyright legislation have come into effect.

By way of recap, the most salient features of the reform are the following.

1. Technology-neutral communication to the public right

The legislation as amended provides a technology-neutral exclusive right for copyright owners to communicate their works to the public through any mode of electronic transmission. This includes, for example, streaming of copyright music, movies, or dramatic works to the public for listening or watching on demand of live, and uploading of a copyright work to a website for access by the public.

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Under the previous regime, the legislation only gave copyright owners certain exclusive rights, including the right to make a copyright work available to the public on the Internet, to broadcast a work, or to include a work in a cable programme service.

To tie in with the introduction of a technology-neutral communication right, the legislation as amended also introduces criminal sanctions against those who make for-profit unauthorized communications of copyright works to the public, or to an extent which will cause prejudice to the copyright owners.

2. Safe harbour to online service providers (OSPs)

The legislation as amended introduces safe harbour provisions for OSPs, meaning that OSPs can potentially limit their liability for copyright infringement if they meet certain prescribed conditions such as taking reasonable steps to take down infringement materials when notified.

3. New copyright exceptions

New copyright exceptions have been introduced to:

• allow OSPs to cache content;
• allow media shifting of sound recording for private and domestic use; and
• provide greater flexibility to the education sector in communicating copyright works when giving instruction, and to facilitate libraries, archives and museums in their daily operations and in preserving valuable works.

4. New fair dealing exceptions

New fair dealing exceptions have been introduced to cover uses of copyright works for the purposes of:

• parody, satire, caricature and pastiche (do note that such terms will be subject to interpretation by courts as they are not defined in the legislation);
• reporting or commenting on current events; and
• making a quotation to facilitate the expression of opinions.

5. Additional statutory factors for the assessment of damages

Given the challenges in the digital environment, the legislation as amended has introduced two additional factors for consideration by courts when determining whether to award additional damages, i.e. (i) the unreasonable conduct of an infringer after having been informed of the infringement; and (ii) the likelihood of widespread circulation of infringing copies as a result of the infringement.

Concluding remarks

The amendments introduced to the copyright legislation are no doubt a positive step to keep up with the ever-changing technological developments in the world and are generally welcomed by the public.

This being said, as expressly stated in the Legislative Council Brief, more work would need to be done in the future to address new copyright issues (e.g., issues relating to AI and copyright), and the Government will embark on a new round of copyright review exercise to study issues that are yet to be addressed in the current amendment.

We remain hopeful that this amendment and any upcoming (Merpel: yet not too distant) amendments will continue to strengthen Hong Kong’s position as an IP trading hub in Asia.