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The long-awaited update to Hong Kong’s copyright regime - Copyright (Amendment) Ordinance 2022

17 March 2023

On 17 February 2023, the Government published in the Gazette the Copyright (Amendment) Ordinance 2022 (Commencement) Notice.

The Copyright (Amendment) Ordinance 2022 (“the Amendment Ordinance”) will come into operation on 1 May 2023. The full text of the Amendment Ordinance can be found here.

Previously, the Government had twice attempted to amend the copyright law but failed to get its proposals through lawmakers.

The Amendment Ordinance updates the Copyright Ordinance to strengthen copyright protection in light of the age of digital and technological advancements and brings Hong Kong’s copyright regime up to speed with international norms. The amendments include:

  • Introduction of a new and exclusive technology-neutral communication right for copyright owners;
  • criminal sanctions against infringements relating to the abovementioned exclusive communication right;
  • a safe harbour regime for incentivising online service providers (OSPs) to co-operate with copyright owners in combating online piracy and infringements occurring on their platforms;
  • new fair dealing exceptions for the use of copyright works for (i) parody, satire, caricature and pastiche; (ii) commenting on current events; and (iii) quotation of copyright works;
  • facilitating online learning and the operation of libraries, museums and archives, to maintain an appropriate balance between copyright protection and reasonable use of copyright works.

The introduction of the technology-neutral communication right and safe harbour for OSPs has been long-awaited. In the light of technological developments, copyright owners will benefit from the amendments which ensures that the protection afforded to them covers their works communicated to the public through any mode of electronic transmission, including streaming. Copyright owners should also be aware that there are two additional factors that courts will consider when assessing whether to award additional damages in civil cases involving copyright infringements, namely (a) the unreasonable conduct of an infringer after having been informed of the infringement; and (b) the likelihood of widespread circulation of infringing copies as a result of the infringement. This is helpful to copyright owners because the new regime now takes into account the harmful effects of copyright infringement in the digital age, as previously it was intrinsically difficult to prove loss incurred by copyright infringements, given that civil damages are compensatory in nature.

To tie in with the "safe harbour", the Government gazetted a code of practice that provides guidance and procedures that OSPs may adopt upon being notified of online piracy on their service platforms in accordance with the regime. The Code of Practice “Copyright Protection in the Digital Environment” can be found here.

This provides much needed clarity to OSPs in respect of their liability and responsibility under the amended law and allows copyright users and service providers to join forces to combat online copyright infringement.

The Customs & Excise Department plan to step-up inspections and enforcement in cooperation with copyright owners upon the commencement of the Amendment Ordinance.

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