Further measures to combat copyright infringement

Following the latest revisions in April 2008, further provisions of the Copyright Amendment Ordinance 2007 came into operation on 11th July 2008.

One of the major new provisions imposes criminal liability on directors, partners and those responsible for the internal management of the organisation for offences committed by the organisation in relation to knowingly possessing an infringing copy of a work with a view to it being used for the purpose of or in the course of business.

Directors may defend themselves by putting forward “sufficient evidence” to raise an issue that they did not authorise the infringing act. A director will be deemed to have adduced sufficient evidence if the court is satisfied that: 

• the defendant set aside financial resources and directed the use of those resources towards the purchase of a sufficient number of genuine copies of the work for use by the organisation; or
• the organisation incurred expenditure for such genuine copies.

In addition, the prosecution must be unable to prove the contrary beyond reasonable doubt.

The court may also take into account whether the defendant introduced policies or practices against the use of infringing copies by the organisation, and whether the defendant took action to prevent such use.

The other new provisions relate to the circumvention of technological protection measures and provide that where a person knowingly circumvents a technological protection measure applied to a copyright work, the following parties enjoy rights and remedies against that person: 

• the owner of copyright in the work; 
• an exclusive licensee of the copyright owner; and 
• any other person who, under a licence from the copyright owner:
  • issues copies of the work to the public; 
  • makes available copies of the work to the public; or 
  • broadcasts the work or includes the work in a cable programme service.

There are certain exceptions to these new rights and remedies (eg, when the act is carried out for the sole purpose of research into cryptography), subject to the satisfaction of certain conditions.

Further provisions of the amendment ordinance will not come into operation until a later date, as decided by the secretary of commerce and economic development.