By virtue of the operation of the Intellectual Property (Miscellaneous Amendments) Ordinance 2000 (“the Ordinance”) on 1 April 2001, it is now a criminal offence under the Copyright Ordinance for any person to use an unauthorized copyright work for purpose of, in the course of, or in connection with, any trade or business. The maximum penalty remains unchanged at HK$50,000 per infringing copy and 4 years imprisonment.
Although the Government has made it clear that it wanted to curb the use of unauthorized software by businesses in Hong Kong, the wordings in the Ordinance are such that the use of all unauthorized copyright works by businesses will also be caught .
The Ordinance appeared almost daily in the local news days before 1 April and created a lot of controversy. Amongst calls by many Legislative Council members to amend or suspend the Ordinance, the Secretary for Commerce and Industry Mr. Chau Tak Hay apologized to the public at a Special Legislative Council meeting on 12 April 2001 for “ the worries and inconvenience caused” by the introduction of the Ordinance and promised “to explore ways to resolve the problems.” The Secretary spoke of his plan to table an amendment bill on 25 April to suspend the implementation of the Ordinance “concerning criminal provisions as they affect works in the printing media including newspapers, magazines, periodicals and book, as well as broadcasts and cable programs, and the downloading of information from the Internet.”1 However provisions in the Ordnance affecting computer programs, music, films and the downloading of these materials from the Internet will remain in force. The Secretary went on to say that the Government will make further amendments to the Ordinance, if necessary.
However when the Commerce and Industry Department submitted the Copyright (Suspension of Amendments) 2001 Bill (“the Suspension Bill”) to the Legislative Council for review on 19 April 2001, the Legislative Council members decided more time is required to consider the same. Hence it was not possible to pass the Suspension Bill in one seating on 25 April 2001 as originally intended. The exemptions to the suspension also seem to be wider than that suggested in Mr. Chau’s speech on 12 April 2001. The exemptions now include films, television drama, sound recording or film (the whole or substantial part of which consists of a musical work and any related literary work) or a computer program (excluding a computer program in a printed form). The suspension is intended to take effect from the commencement date, to be decided, to 31 July 2002 or on such other date as the Secretary for Commerce and Industry may specify by notice published in the Government Gazette.
The Bills committee is still considering the Suspension Bill at the time this article goes to print and we shall see whether changes will be made to the said Bill before it comes into effect.
1 Excerpts from the Secretary’s speech on 12 April 2001
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