The Hong Kong Government has officially announced the Hong Kong Copyright (Amendment) Ordinance, which will introduce significant changes to the copyright laws in Hong Kong.
After previous failed attempts in 2011 and 2014, the new legislation will update five key areas of the copyright regime including the introduction of an exclusive technology-neutral communication right for copyright owners, criminal sanctions for infringements related to this new right, an expanded scope of copyright exceptions, safe harbor provisions for online service providers, and new statutory factors for the court to consider when assessing additional damages in civil copyright infringement cases. The exact date of implementation has not yet been announced.
The five key areas of updates in the Hong Kong Copyright (Amendment) Ordinance are:
Exclusive technology-neutral communication right: This new right grants copyright owners the ability to communicate their works to the public through any mode of electronic transmission, including streaming. This technology-neutral approach allows for flexibility in light of future technological developments. However, certain acts such as the "mere provision of facilities" for enabling the communication of a work to the public will not be considered an exercise of this right.
Criminal sanctions against infringements: To protect the communication right, the ordinance introduces criminal sanctions for those who make unauthorized communication of copyright works to the public for the purpose of trade or business or in a way that prejudicially affects the copyright owners. The government has stated that the enforcement priorities for these criminal sanctions will be aimed at "large scale" infringement activities such as illegal streaming of films.
Expanded scope of copyright exceptions: The new ordinance expands the number of permitted acts in relation to copyright works, such as fair dealing for the purpose of parody, satire, caricature, and pastiche, fair dealing for the purpose of commenting on current events and quotation of copyright works in certain circumstances, communicating copies of certain copyright works by educational establishments for educational purposes, data caching by online service providers, and media shifting for private and domestic use. The government expects that these new exceptions will be sufficient to address concerns that the new communication right would be overly in favor of copyright owners.
Safe harbour provisions: Online service providers (OSPs) will be protected from liability stemming from infringing works on their platforms, provided that certain conditions are met. The new safe harbour provisions include "notice and notice" and "notice and takedown" procedures that OSPs must comply with in order to be exempt from liability for copyright infringement. A code of practice is being prepared by the Hong Kong Government together with industry stakeholders.
Additional factors for the court to consider when assessing additional damages: The ordinance introduces two new statutory factors for the court to consider when assessing whether to award additional damages in civil copyright infringement cases. This is intended to provide more guidance to the court when determining the amount of damages to be awarded in cases of copyright infringement.
Overall, the Hong Kong Copyright (Amendment) Ordinance is aimed at modernizing and updating the copyright regime in Hong Kong to better protect copyright owners and provide clarity for online service providers and end users. However, the specific implementation details, such as the date of coming into force of the new ordinance, have not been announced yet.
