OVERVIEW
The Copyright Ordinance (Cap. 528) addresses copyright protection in Hong Kong and creates civil and criminal liabilities and defences in respect of copyright infringement. Copyright only subsists in a literary, artistic, musical or dramatic work if it is original.
The main offences under section 118 of the Ordinance include making an infringing copyright article for sale; importing or exporting it; selling, letting for hire or exhibiting it; distributing it; or possessing it with a view to sale. There are also offences concerning the possession of infringing copies of computer programs, movies, television dramas, musical sound recordings or music videos for the purpose of trade or business, and regularly making infringing copyright articles for distribution. The Copyright Ordinance allows for fines and imprisonment at different levels depending on the offence committed, as does the Prevention of Copyright Piracy Ordinance (Cap. 544).
Our lawyers regularly represent clients in these courts. In the lower courts, we often represent clients without Counsel. We also regularly instruct barristers to work with us as a team in defending our clients.
STATUTORY PROVISIONS
Sections 118 and 119A of the Copyright Ordinance (Cap. 528)
The relevant part of the current statutory provision states:
Section 118 — Offences in relation to making or dealing with infringing articles
A person commits an offence if he, without the licence of the copyright owner of a copyright work, makes for sale or hire an infringing copy of the work.
Section 119A — Possession of infringing copies in a copying service business
A person commits an offence if, for the purpose of or in the course of a copying service business, he possesses a reprographic copy of a copyright work as published in a book, magazine or periodical, being a copy that is an infringing copy of the copyright work.
ELEMENTS OF THE OFFENCE
The Existence of Copyright
The item in question must be a work in which copyright subsists under Hong Kong law, such as a literary, musical, dramatic or artistic work.
An Infringing Copy
The prosecution must prove that the article is an unauthorised, bootleg or pirated duplicate that copies a substantial part of the original work.
Absence of a Licence
The defendant must have acted without the licence, consent or permission of the legitimate copyright owner.
The Prohibited Conduct
The defendant must have carried out one of the specific statutory acts listed in the charge:
- Making the copy for commercial use.
- Importing it into or exporting it out of Hong Kong.
- Selling, hiring or publicly exhibiting it.
- Possessing or distributing it in the course of business.
Knowledge
- Requisite Knowledge: The defendant must have known, or had reason to believe, that the article being dealt with was an infringing copy of a copyright work.
- Commercial Purpose: For possession or distribution charges, the prosecution must establish the applicable commercial purpose, including that the items were held with a view to committing an infringing act or for the purpose of trade or business.
Maximum Penalty
Maximum Penalties under Section 118
The specific sentencing thresholds for copyright convictions depend heavily on whether the charge involves standard commercial infringement, technological circumvention or unlawful communication of works.
1. Commercial Dealings, Business Possession and Distribution: For standard offences under section 118(1) or (2A), including making, importing, exporting, selling or possessing infringing copies for business purposes, an offender prosecuted on indictment faces up to 4 years' imprisonment and a Level 5 fine (HK$50,000) for each infringing copy.
2. Electronic and Digital Communication Offences: For an offence under section 118(8B), concerning unauthorised digital communication of a work to the public in circumstances prejudicing the copyright owner or involving business profit, the maximum penalty is 4 years' imprisonment and a Level 5 fine (HK$50,000) for each copyright work communicated.
3. Circumvention Tools and Anti-Protection Violations: For offences under section 118(4) or (8), including manufacturing, importing or commercially dealing in devices designed to circumvent technological copyright-protection measures, the maximum penalty is 8 years' imprisonment and a fine of HK$500,000.
HOW MCS CAN ASSIST
Advice and representation
MCS can assess the charge, the statutory elements and the prosecution evidence; advise on interview, plea, trial and sentence; and identify any defence or evidential issue available on the facts.