OVERVIEW
The Copyright Ordinance (Cap. 528) protects films, music, software, publications and other copyright works. Section 118 creates criminal offences involving infringing copies and specified acts such as making, importing, exporting, possessing or distributing them in the circumstances defined by the Ordinance. Online conduct may also engage communication-to-the-public provisions.
STATUTORY PROVISIONS
section 118 of the Copyright Ordinance (Cap. 528)
The relevant part of the current statutory provision states:
Section 118 — Criminal liability for dealing with infringing copies
Section 118 specifies criminal offences involving acts such as making, importing, exporting, possessing, selling, distributing or otherwise dealing with infringing copies without the copyright owner's licence, subject to the precise knowledge, purpose and circumstances required by the applicable subsection.
ELEMENTS OF THE OFFENCE
Existence of a Subsisting Copyright
The prosecution must first establish that the material in question—such as a film, song, software package or publication—is legally protected by copyright under Hong Kong law and that the complainant owns that specific copyright.
The Physical Acts (Actus Reus)
The defendant must have carried out one of the specified acts listed under section 118 of the Copyright Ordinance (Cap. 528). This physical component may be satisfied if the defendant:
- Makes an infringing copy, such as by copying a retail software package.
- Imports an infringing copy into Hong Kong or exports one from Hong Kong.
- Sells, lets for hire, offers or exposes for sale or hire, or exhibits in public an infringing copy for the purpose of or in the course of trade or business.
- Distributes an infringing copy for profit or in the course of business, or otherwise distributes it to such an extent as to affect prejudicially the copyright owner—for example through a digital file-sharing network.
- Possesses an infringing copy for the purpose of or in the course of trade or business with a view to committing an act infringing the copyright, including the use of unauthorized software on company computers where the statutory requirements are met.
- Communicates a copyright work to the public through internet streaming, links or digital broadcasting without authorization in circumstances covered by the Ordinance.
The Mental State (Mens Rea)
The prosecution must prove the defendant's guilty knowledge. The required mental element depends on the specific subsection:
- Actual or Constructive Knowledge: The defendant knew or had reason to believe that the copy being handled, possessed or distributed was an infringing copy.
A defendant cannot escape liability by claiming ignorance where the circumstances would have made the infringement apparent—for example, where a corporate software licence normally costing substantially more was obtained for HK$10 from an unauthorized online forum as a cracked copy.
PRIVATE DOMESTIC USE
Private Domestic Use Is Not a Criminal Offence
Using or possessing an infringing copy solely for private and domestic purposes is not, by itself, a criminal offence under section 118 of the Copyright Ordinance. For example, the criminal provisions governing importation and business end-user possession require the additional statutory circumstances specified in the applicable subsection.
Private use is not necessarily lawful, however. Downloading, copying or otherwise using a copyright work without authorization may still amount to civil copyright infringement unless a statutory exception applies. Criminal liability may also arise if the conduct involves trade or business, sale or hire, or distribution or communication to the public in circumstances covered by the Ordinance.
Maximum Penalty
- Standard offences: Under sections 118(1) and 118(2A), specified offences involving the making, importing, exporting, possessing, selling or distributing of infringing copies are, by section 119(1), punishable on conviction on indictment by 4 years' imprisonment and a fine of HK$50,000 for each infringing copy.
- Articles used to make infringing copies: The equipment offences under sections 118(4) and 118(8)—including possessing an article specifically designed or adapted for making copies of a copyright work while knowing or having reason to believe that it is or will be used to make infringing copies for sale or hire or for use in trade or business—are, by section 119(2), punishable on conviction on indictment by 8 years' imprisonment and a HK$500,000 fine.
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.