Hong KongCopyright Ordinance, sections 22, 23 and 28A, the acts restricted by copyright, copying and communication to the public
Copyright Ordinance (Cap. 528), ss. 22-23, 28A
In force since .
A copyright: the exclusive rights rule binding public and private bodies.
- Instrument type
- an act of a legislature
- Categories
- Linking framing
- Obligation class
- Prohibition
As of .
What it requires
- You need the copyright owner's licence to copy a work, issue or rent copies of it to the public, perform, show or play it in public, communicate it to the public, or make an adaptation of it; copying includes storing a work by electronic means and making transient or incidental copies (ss. 22(1), (2), 23(2), (6)).
- Authorizing another person to do one of those acts without the owner's licence is also infringement, and a court may weigh your power to control or prevent the infringement, your relationship with that person and whether you took reasonable steps to limit or stop it (s. 22(2), (2A)).
- Making a work available through the Internet, so that members of the public may access it from a place and at a time they choose, is communicating it to the public (s. 28A(2), (3)).
- You communicate a work to the public if you determine the content of the communication; a person who only clicks on a link to gain access to a webpage does not (s. 28A(4), (5)).
- Providing facilities that enable or facilitate communication of a work to the public is not of itself communicating it, but facilities primarily designed, produced or adapted to enable direct access to a work without the owner's permission are not a mere provision of facilities (s. 28A(6)).
- Communicating a work to the public without the owner's licence in the course of a business of communicating works for profit or reward, or to an extent that prejudicially affects the owner, is also a criminal offence (ss. 118(8B), 119(3)).
- A computer program and a compilation of data that is an intellectual creation by its selection or arrangement are literary works, so copying either is within these rights (s. 4(1)).
These lines are LexLint's reading of the law's text, as of .
If you get it wrong
Criminal exposureYes
Criminal exposure note
Making for sale or hire an infringing copy of a copyright work is an offence under section 118(1)(a), liable on conviction on indictment to a fine at level 5 in respect of each infringing copy and imprisonment for 4 years (s. 119(1)). Communicating a work to the public in infringement of copyright in the course of a business of communicating works for profit or reward, or to an extent that prejudicially affects the owner, is an offence under section 118(8B), liable on conviction on indictment to a fine at level 5 in respect of each copyright work and imprisonment for 4 years (s. 119(3)).
Who enforces it
Settledness
- As of
- Open questions
- Does a person who links to a work on another site, or displays it by inline or framed display, determine the content of the communication under section 28A(4), given that the example in section 28A(5) addresses only a person who clicks on a link to gain access to a webpage?
What this law does
Section 22(1) of the Copyright Ordinance gives the owner of the copyright in a work the exclusive right to copy it, issue copies of it to the public, rent copies to the public, perform, show or play it in public, communicate it to the public, and make an adaptation of it. Copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorizes another to do, any of the acts restricted by the copyright.
In determining whether a person has authorized another to do such an act, the court may take into account the extent of that person's power to control or prevent the infringement, the nature of the relationship between them, and whether that person has taken any reasonable steps to limit or stop the infringement. Copying a work means reproducing it in any material form, which includes storing the work in any medium by electronic means.
Copying includes the making of copies which are transient or are incidental to some other use of the work. References to the communication of a work to the public are references to the electronic communication of the work to the public, including the broadcasting of the work, the inclusion of the work in a cable programme service and the making available of the work to the public.
Making a work available to the public means making it available, by wire or wireless means, in such a way that members of the public in Hong Kong or elsewhere may access it from a place and at a time individually chosen by them. A person is regarded as having communicated a work to the public if the person has determined the content of the communication, and a person does not determine the content only because the person clicks on a link to gain access to a webpage.
A computer program is a literary work. A person who without the licence of the copyright owner makes for sale or hire an infringing copy of a copyright work commits an offence. Section 119(1) provides that a person who commits that offence is liable on conviction on indictment to a fine at level 5 in respect of each infringing copy and to imprisonment for 4 years.
Section 118(8B) makes it an offence to infringe copyright by communicating a work to the public in the course of a business of communicating works to the public for profit or reward, or otherwise to such an extent as to affect prejudicially the copyright owner. That offence is punishable on conviction on indictment by a fine at level 5 in respect of each copyright work and imprisonment for 4 years.
It is a defence for the person charged to prove that the person did not know and had no reason to believe that the communication infringed copyright. The Ordinance, with the right to copy a work, commenced on . The communication right was added to section 22(1) by Ordinance 16 of 2022, which came into operation on .
When LexLint raises it
When your app profile says your app reuses other publishers' content, distributes a software product, trains models or generates content with AI.