Florence Lam

Florence Lam


The second reading of the Copyright (Amendment) Bill 2011 has been postponed following the submission of nearly 1,400 amendments to the bill by a political coalition.

One of the major public concerns regarding the bill is the potential criminal liability for posting parodic or derivative works online. The existing Copyright Ordinance criminalises the act of:

"distributing an infringing copy of the work (otherwise than for the purpose of or in the course of any trade or business which consists of dealing in infringing copies of copyright works) to such an extent as to affect prejudicially the copyright owner."

The bill further introduced the new offence of:

"communicating an infringing copy of the work to the public (otherwise than for the purpose of or in the course of any trade or business that consists of communicating works to the public for profit or reward) to such an extent as to affect prejudicially the copyright owner."

One of the factors to be taken into consideration in determining whether such distribution or communication will prejudicially affect the copyright owner is the “economic prejudice” that it causes to the owner, including its effect on the “potential market for or value of the work”. Due to public concern over such wording, the government further proposed the concept of “more than trivial economic prejudice”, and that consideration be given to whether the infringing copy, once distributed or communicated, amounts to a substitution of the work.

The public supports a full exemption for derivative works, while the government believes that, in general, a parody does not substitute the original work and thus causes no economic prejudice to the owner. It thus remains to be seen how a balance will eventually be struck between the interests of copyright owners and users of the work.

For further information please contact:

Florence Lam
Wilkinson & Grist
www.wilgrist.com
Email: florencelam@wilgrist.com
Tel: +852 2524 6011