New criminal offence regarding certain types of printed work

Further provisions of the Copyright (Amendment) Ordinance 2007 came into operation on 16th July 2010.

The provisions lay down a new business end-user criminal offence of regularly distributing or making with a view to distributing infringing copies of printed books, newspapers, magazines and periodicals, which results in financial loss for the relevant copyright owners.

Where the distribution of an infringing copy is made through a wired or wireless network to which access is not restricted by authentication or identification procedures, the criminal provision does not apply. Where access is restricted by authentication or identification procedures, the criminal provision applies only where the infringing copy is embodied in a document that is distributed to an email address or fax number.

In respect of magazines, periodicals (excluding academic journals) and newspapers, the distribution or the making for distribution of no more than 500 A4-size pages embodying infringing copies of copyright works within any 14-day period is exempt from the provision.

For books and academic journals, the distribution or the making for distribution of "qualifying" copies of copyright works to a total value of no more than HK$6,000 within any 180-day period is also exempted.

In addition, directors, partners or those responsible for the internal management of the organisation shall be presumed to have participated in the act in question unless there is evidence to show that they did not authorise the act to be done. The directors or partners may adduce “sufficient evidence” to show that they did not authorise the act. “Sufficient evidence” is deemed to have been adduced if the court is satisfied that the defendant director or partner has set aside financial resources and directed the use of those resources to acquire appropriate licences to make or distribute copies of the work or to buy a sufficient number of genuine copies of the work for use by the organisation, or if the organisation has incurred expenditure for any of the above.

A defence is available to the person charged with the offence to prove that:

• Adequate and reasonable steps were taken to obtain a licence from the copyright owner, but the person failed to obtain a timely response.
• Reasonable efforts were made, but the person failed to obtain commercially available copies of the copyright work and the copyright owner refused to grant a licence on reasonable commercial terms.
• There was no reason to believe that the copies made or distributed were infringing copies.
• The identity and contact details of the copyright owner could not be ascertained after making reasonable inquiries.

For an employee charged with such an offence, it is a defence to prove that he or she carried out the act in the course of employment and in accordance with the instructions of the employer.