Comments on the Consultation Document on the Review of Certain Provisions of the Copyright Ordinance

Chapter 1: Criminal Provisions relating to End-user Piracy
The Bar is of the view that mere possession of an infringing copy by end users should not be criminalized. The Bar refers to paragraph 1 of its previous comments dated 25th April 2001, a copy of which is attached hereto for ease of reference.
If criminal sanction is to be retained, it should be restricted to business activities of a profit-making nature, and its ambit should be restricted as far as possible to avoid any draconian consequences.
Paragraph 1.11(a): No
Paragraph 1.11(b): No
Paragraph 1.11(c): Yes
Paragraph 1.11(d): Yes
Paragraph 1.11(e):Yes

Chapter 2: Permitted Acts for Educational Purposes
Paragraphs 2.13(a) and (b)
From a legal point of view, the Bar prefers certainty to ambiguity, provided the users and the parties involved are prepared to accept giving up flexibility for certainty in respect of the permissible amount of work which the users may copy under any proposed statutory approach to be adopted.
The educational users and the copyright owners would be in a better position to express an opinion on what amount of work they should be allowed to copy under this exemption, and the elements that should be covered if the statutory approach is to be adopted.

Paragraph 2.13(c)
The act of recording or copying permissible under sections 44 and 45 of the Copyright Ordinance should be permitted no matter whether there are any licences available under any licensing schemes or not.
Acts permitted by the Copyright Ordinance do not need to be licensed. Licensing schemes merely license the users to do what they are not otherwise allowed to do.

Paragraph 2.13(d)
The Bar supports the proposed permitted act under this paragraph.

Chapter 3: Permitted Acts for Visually Impaired Persons
Paragraphs 3.4(a) and (b)
The Bar supports the proposed permitted acts under both paragraphs.

Chapter 4: Permitted Acts Related to Free Public Showing or Playing of Broadcast or Cable Programme
Paragraph 4.9(a)
The statutory exemption should be extended to all underlying copyright works.
It is not fair if all copyright owners are not treated equally.

Paragraph 4.9(b)
The Bar finds the proposed extension of the statutory exemption acceptable.
The Bar prefers this paragraph to read as "the exemption should be extended to cover all public places where the broadcast or cable programme is shown or played except where goods or services are supplied at prices which are substantially attributable to higher than the normal prices to reflect the provision of the facilities afforded for seeing or hearing the broadcast or programme."

Chapter 5: Parallel Importation of Copyright Works other than Computer Software
Paragraph 5.14(a)
The Bar is in favour of removing civil liability and criminal sanction against parallel importation of and subsequent dealing in all types of copyright work.
The Bar refers to our view previously submitted to the Bar on this issue. The Bar is in favour of the policy of free trade having regard to the provisions of WTO.
It is against the public interest to place restrictions on parallel imports and to allow traders to carve up the markets in different jurisdictions and charge the consumers in Hong Kong artificially higher prices.
The lowering in retail prices is conducive to encourage a wider circulation of books and dissemination of information and knowledge, and the availability of less expensive computer programs and other apparatus is conducive to lowering business costs in Hong Kong.

Paragraph 5.14(b)
The Bar is against the continuation of criminal sanction against parallel importation and subsequent dealing in the parallel imported copies of copyright works under this paragraph. See the comments under paragraph 5.14(a) above.

Paragraph 5.14(c)
The Bar is in favour of the removal of civil liability and criminal sanction imposed on end-users of parallel imported copies of copyright works in business. See the comments under paragraph 5.14(a) above.

Chapter 6: Unauthorised Reception of Subscription Television Programmes
Paragraph 6.12(a)
The Bar is not sure that this has anything to do with copyright infringement.
But insofar as the suggestion of making "fraudulent reception of subscription television programmes" a criminal offence is concerned, it should be made the subject of other Ordinances such as the Telecommunication Ordinance or the Broadcasting Ordinance and not the Copyright Ordinance.
Insofar as private premises are concerned, any invasion of privacy, if it has to be done, has to be done with sufficient safeguards.
Further consultation should be carried out after a more crystallized bill on the criminalisation of "fraudulent reception of subscription television programmes" is prepared.
Any power to award compensation in respect of "fraudulent reception of subscription television programmes" should be provided for in criminal proceedings under other ordinances and not the Copyright Ordinance.

Paragraph 6.12(b)
The Bar does not support this proposal as the fraudulent reception of subscription television programme does not appear to be a copyright infringement issue.

Paragraph 6.12(c)
The Bar only supports the introduction of criminal sanction but not civil remedy against possession of an unauthorized decoder for commercial purposes.
Any power to award compensation in respect of possession of an unauthorized decoder for commercial purposes should be provided for in criminal proceedings under other ordinances and not the Copyright Ordinance.

Chapter 7: Licensing Bodies
Paragraph 7.13(a)
As copyright licensing involves public interest including those of the consumers, it is preferable for a statutory tribunal instead of a bi-parte mechanism to resolve licensing differences.
As arbitration is a consensual process, there has to be a mandatory system such as the Copyright Tribunal to take care of cases where the parties do not agree to submit their disputes to arbitration.
Parties can choose to mediate or arbitrate at any stage if they want to.
The procedures of the Copyright Tribunal should be simplified so as to enable the parties to go straight to the substantive hearing which should be made less formal. This is in line with past experience and the recent proposal for reform of civil litigation in Hong Kong.

Paragraph 7.13(b)
The Bar supports the proposal under this paragraph in the interest of transparency and accountability.

28th December 2001