Hong KongCopyright Ordinance, sections 88C to 88H, notice of alleged infringement, counter notice and protection for removal
Copyright Ordinance (Cap. 528), ss. 88C-88H
In force since .
A notice and action rule binding public and private bodies.
As of .
What it requires
- Specify, through your service, the means by which a notice of alleged infringement and a counter notice are to be provided to your designated agent; you may also specify their form so far as it is not inconsistent with the content the Ordinance requires (ss. 88C(5), (6), 88E(5), (6)).
- A notice that lacks the content or form section 88C requires is of no effect for the section 88B(2)(a)(i) condition, and is not counted when deciding whether you were aware of the infringement (s. 88C(4)).
- On receiving a notice of alleged infringement you may send a copy to the subscriber, tell the subscriber to contact the complainant directly, remove the material or disable access to it, and notify the subscriber of the removal or disabling (s. 88C(7)).
- To keep the protection from liability for removing material that resides at a subscriber's direction, take reasonable steps to notify the subscriber of the removal and to send the subscriber a copy of the notice (s. 88H(2)(a), (b)).
- If the subscriber gives a counter notice, promptly send a copy to the complainant, act on an individual subscriber's stated option on disclosing the subscriber's personal data, and take reasonable steps to reinstate the material or cease disabling access within a reasonable time, unless proceedings seeking a court order have been commenced in Hong Kong and your designated agent has been notified of them in writing (s. 88H(2)(c), (7)).
- If you remove material after becoming aware yourself of an infringement, take reasonable steps to notify the subscriber, to give the subscriber information reasonably sufficient to identify the material and your reasons, and to reinstate the material within a reasonable time after a counter notice, to keep the same protection (s. 88H(3), (4)).
These lines are LexLint's reading of the law's text, as of .
What this law does
A notice of alleged infringement under section 88C of the Copyright Ordinance must be in writing, be signed or otherwise authenticated by the copyright owner or the owner's authorized representative, and be provided to the service provider's designated agent by the means the provider specifies. A notice that does not comply with section 88C(2) or (3) is of no effect for the purposes of section 88B(2)(a)(i).
On receiving a notice, a service provider may send a copy to the subscriber, notify the subscriber that the subscriber may contact the complainant directly, remove the material or disable access to it, and notify the subscriber of the removal or disabling.
Within a reasonable time after receiving a copy of the notice, the subscriber may give a counter notice disputing or denying the infringement and requesting the provider to take reasonable steps to reinstate the material, or cease disabling access, within a reasonable time after receiving the counter notice.
A service provider that has in good faith removed material pursuant to a notice is not liable for the removal, but for material residing at a subscriber's direction it keeps that protection only if it takes reasonable steps to notify the subscriber and send a copy of the notice and, where a counter notice is given, promptly sends it to the complainant and takes reasonable steps to reinstate the material.
The reinstatement steps do not apply if proceedings seeking a court order about the infringing activity have been commenced in Hong Kong and the provider's designated agent has been notified in writing. A person who makes a statement in a notice of alleged infringement or counter notice knowing it to be false in a material respect, or recklessly makes a materially false statement, commits an offence liable on conviction to a fine at level 2 and imprisonment for 2 years.
A person who makes such a statement knowing it to be false, or not believing it to be true, in a material respect is also liable in damages to any person who suffers loss or damage as a result. In an action about a service provider's liability, the court must presume that the provider complied with a condition described in section 88B(2) or a condition in the code of practice if the provider adduces evidence tending to show that it did.
When LexLint raises it
When your app profile says your app operates a social platform or reuses other publishers' content.