Hong KongCopyright Ordinance, section 88B, limitation on the liability of service providers for infringement on their platforms
Copyright Ordinance (Cap. 528), ss. 88A-88B
In force since .
An intermediary liability rule binding public and private bodies.
- Obligation class
- Disclosure
As of .
What it requires
- To keep the section 88B limitation on liability, take reasonable steps to limit or stop an infringement on your service platform as soon as practicable after you receive a notice of alleged infringement, become aware of the infringement, or become aware of facts that would lead inevitably to the conclusion that it occurred (s. 88B(2)(a)).
- Do not receive a financial benefit directly attributable to the infringement; one-off set up fees and flat periodic payments charged to all users on a non-discriminatory basis are not such a benefit (s. 88B(2)(b), (4)(b)).
- Accommodate, and do not interfere with, the standard technical measures that copyright owners use to identify or protect their works (s. 88B(2)(c)).
- Designate an agent to receive notices of alleged infringements, and supply the agent's name and contact details through your service, including on your website at a location accessible to the public (s. 88B(2)(d)).
- Complying with all the provisions of the Secretary for Commerce and Economic Development's code of practice on limiting or stopping an alleged infringement counts as having taken reasonable steps (s. 88B(3)).
- The Division does not require you to monitor your service or actively seek facts that indicate infringing activity, and failing to qualify for the limitation does not affect any other defence you may have (s. 88B(5)).
These lines are LexLint's reading of the law's text, as of .
Who enforces it
Settledness
- As of
- Open questions
- Which steps does the code of practice that the Secretary publishes under section 88J treat as reasonable steps for a given kind of service, since compliance with all of its relevant provisions is treated as taking reasonable steps?
What this law does
Section 88B of the Copyright Ordinance provides that a service provider is not liable for damages or any other pecuniary remedy for infringement of copyright that occurs on its service platform merely because it provides, or operates facilities for, online services, if the conditions in section 88B(2) are complied with.
The conditions are that the service provider takes reasonable steps to limit or stop the infringement as soon as practicable after receiving a notice of alleged infringement or becoming aware of the infringement or of facts that would lead inevitably to the conclusion that it occurred, receives no financial benefit directly attributable to the infringement, accommodates and does not interfere with standard technical measures, and designates an agent to receive notices of alleged infringements.
A service provider is treated as having taken reasonable steps if it complies with all the provisions of the code of practice on the course of action that a provider may adopt in limiting or stopping an alleged infringement. Nothing in the Division requires a service provider to monitor its service or actively seek facts that indicate infringing activity, except to the extent consistent with a standard technical measure.
A service provider is a person who, by means of electronic equipment or a network, or both, provides, or operates facilities for, any online services. Online services include the hosting of information, the storing of information on a system or network that users can access, the linking of users to an online location by information location tools, and online social networking services.
Section 88B does not apply to proceedings for infringement of copyright commenced before it came into operation on .
When LexLint raises it
When your app profile says your app operates a social platform or reuses other publishers' content.