Draft Code of Practice for online service providers

The secretary for commerce and economic development has sought public views on a draft Code of Practice to provide practical guidance to online service providers on the relevant practices and procedures to be adopted in order to limit or prevent copyright infringement on their service platforms. The code has been published pursuant to the Copyright (Amendment) Bill 2011, which proposes to introduce statutory provisions to establish a safe harbour for online service providers to limit their potential liability for online copyright infringement. Compliance with the code is not mandatory, but where the service provider complies with the code, it will be treated as having taken reasonable steps to limit or stop the infringement in question.

The code sets out the steps to be taken by a service provider in order to send a notice to a subscriber following a complaint of alleged infringement. The service provider need not verify the authenticity and content of a notice of alleged infringement, provided that the notice is in the form prescribed in the code, contains all the particulars required and is signed or otherwise authenticated by the complainant.

For a service provider which has stored infringing material at the direction of a subscriber, or has linked to or referred users to an online location on its service platform that contains infringing material, the code sets out steps to be taken by the service provider in order to remove or disable access to material identified as infringing following receipt of a notice of alleged infringement or if the service provider becomes aware of the infringing material.

If a subscriber wishes to dispute or deny the infringement, he or she may send a signed or authenticated counternotice in the prescribed form to the service provider within a certain period of time after the date of the service provider’s notice. The complainant will be notified of the counternotice. If the copyright owner fails to commence proceedings in Hong Kong seeking a court order to restrain the subscriber from engaging in infringing activity on the service provider’s service platform, the service provider shall take reasonable steps to reinstate or allow access to the material.