Under the present provisions of the Copyright Ordinance, parallel importation of a copyright work into Hong Kong can attract civil liability. It is also a criminal offence if the importation or subsequent sale of the parallel imported products takes place within 18 months beginning on the first day of publication of the copyright work (unless such products are imported for private and domestic use). The maximum penalty is HK$50,000 per infringing copy and 4 years’ imprisonment.
The Copyright (Amendment) Ordinance 2003 ("the Ordinance") was promulgated on July 11, 2003 (commencement date has yet to be announced) to remove the civil and criminal liabilities relating to parallel importation and subsequent dealings in computer programs. The Ordinance was introduced in response to the strong views taken by the Legislative Council and computer software users that allowing parallel importation of computer programs into Hong Kong will benefit the consumer public as this would increase competition and availability of products in Hong Kong and hence, resulting in wider choices and lower prices for consumers. At the same time, this will also help to alleviate the financial burden of enterprises (particularly, the small and medium ones) to comply with the end-user criminal provisions in the Copyright Ordinance that came into force on April 1, 2001.
The effect of the Ordinance is as follows:-
- Parallel imported copies of computer program and other work that is embodied in an article containing a copy of a computer program that would otherwise be infringing copies by virtue of the Copyright Ordinance are no longer infringing copies. Therefore, importation or subsequent sale of such copies no longer attracts civil or criminal liability. This, however, does not apply to computer programs whose principal use is to be viewed or played as a movie, a TV drama, musical sound recording, musical visual recording or as an e-book.
- End-user criminal liability that arises as a result of the owner of computer program imposing a condition in the end-user license agreement prohibiting the use of the computer program in Hong Kong has been removed. This, however, does not affect the civil liability of end-user in relation to such a violation.
- As far as criminal liability is concerned, the Ordinance will have effect retrospectively to acts done before its commencement where no conviction has yet been recorded.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.