Second sweep of revisions cracks down on anti-circumvention technology

Some further provisions of the Copyright (Amendment) Ordinance 2007 have now come into effect, as a consequence of the Copyright (Amendment) Ordinance 2007 (Commencement) Notices 2008. The ordinance was first published in the Government Gazette on 6th July 2007, after a long period of consultation.

The latest set of changes include the following:

• Rental rights will be extended to films as well as to literary, dramatic and musical works included in a sound recording. Rental rights used only be available for computer programs and sound recordings.
• The definition of "performance" in that part of the Copyright Ordinance which deals with performers' rights is widened to include performance of an artistic work and an expression of folklore; the definition of "performer" is also amended. Therefore, a person who performs an artistic work or an expression of folklore will enjoy performers’ rights (eg, making a copy of a fixation of the whole or a substantial part of a performance other than for private and domestic use will require the performer’s consent), in the same way as a person who performs a dramatic performance, a musical performance or a reading of a literary work.
• It will be an infringement of a performer’s rights to rent to the public without the performer’s consent copies of a sound recording in which the whole or any substantial part of a performance is fixed.
• Moral rights are conferred on a performer of a live aural performance or a performer whose performance is fixed in a sound recording.
• While previously, the Copyright Ordinance imposed only civil liabilities on the circumvention of anti-copying technology, the new provisions impose both civil and criminal liabilities on a person who deals with a circumvention device or provides a circumvention service for commercial purposes. There are certain exceptions - for example, where the devices are to prevent access of minors to harmful materials on the Internet or where the sole purpose of the device is to identify or disable spyware. "Circumvention devices" include any device, component or means which is promoted or marketed for the purpose of the circumvention of anti-copying technology, and which otherwise has only a limited commercially significant purpose. A person convicted of such offence is liable to a fine of HK$500,000 and to imprisonment for up to four years.

There are still other provisions in the Amendment Ordinance which will not come into operation until a later date, to be appointed by the secretary of commerce and economic development.