Introduction
The Copyright (Amendment) Ordinance 2022 will come into operation on 1 May 2023 and bring long-awaited updates to Hong Kong's Copyright Ordinance (Cap. 528) (the "Ordinance").1 We have discussed the key amendments in a previous article "The Beginning of a New Chapter: Hong Kong's Copyright (Amendment) Bill 2022 is Gazetted" in our IP & TMT Quarterly Review (Second Quarter 2022).
One of the key amendments is the introduction of safe harbour provisions that limit the liability of Online Service Providers ("OSP") for copyright infringement occurring on their platforms.2 Whilst the conditions for invoking the safe harbour provisions will be listed in the Ordinance, the practical guidelines and procedure of what an OSP should do upon receiving a notice of alleged infringement ("Notice") are set out in a voluntary Code of Practice ("Code").3
The Code of Practice, published by the Secretary for Commerce and Economic Development in February 2023, is based on a draft version formulated in 2012 when the Government's attempted to amend the Ordinance.
As a follow-up to our last article, we examine the "notice and notice" and "notice and takedown" systems set out in the Code.
Safe Harbour Provisions
An OSP will not be liable for damages or other pecuniary remedy for copyright infringement caused by users on their platforms, if all of the conditions below are met:4
- The OSP has taken reasonable steps to limit or stop the infringement as soon as practicable after receiving a Notice, becoming aware that the infringement has occurred, or becoming aware of the facts or circumstances that would lead inevitably to the conclusion that infringement had occurred;
- The OSP has not received, and is not receiving, any financial benefit directly attributable to the infringement;
- The OSP accommodates and does not interfere with the standard technical measures that are used by copyright owners to identify or protect their copyright works; and
- The OSP designates an agent to receive the Notices and supplies the agent's name and contact details on its service.
Related provisions include, for example, the form and procedure of submitting a Notice, what OSPs should do after receiving the Notice or becoming aware of an infringement, and the form and procedure for users to submit a counter notice ("Counter Notice") to contest the complaint.5
Whilst it is voluntary for OSPs to comply with the Code once they receive a Notice, they will be treated as having taken reasonable steps to limit or stop the infringement in question, as required in condition (1) above, if they have fully complied with the Code.6 Non-compliance with the Code does not disqualify an OSP from invoking the safe harbour provisions; however, it will need to demonstrate to the Court what reasonable steps it has taken to satisfy condition (1).7
"Notice and Notice" or "Notice and Takedown"
An OSP is defined as a person who, by means of electronic equipment and/or a network, provides or operates facilities for any online services.8 The Code distinguishes between three types of OSPs: (i) OSPs which store materials on their platforms; (ii) OSPs which use information location tools9 to link or refer to online materials; and (iii) OSPs which only transmit, route or provide connections for digital online communications.
The first two types of OSPs are subject to a "notice and takedown" system. However, a key distinction is that only the first type (i.e. OSPs which store materials on their platforms) may need to reinstate the allegedly infringing material which it had taken down, if (1) it receives a Counter Notice from the user disputing the complaint, and if (2) the complainant does not commence Court proceedings in Hong Kong against the alleged infringement.10 As for the third type of OSPs, they are subject to a "notice and notice" system as they do not have control over the allegedly infringing material (or the hyperlink or reference to such material).
An overview of the types of OSPs, subject matters of the complaints, and the steps to be taken by the OSPs under the different systems, is shown on the next page.
Click here to continue reading . . .
Footnotes
1. Original text can be found at Copyright (Amendment) Ordinance 2022.
2. New Part II, Division IIIA of the Ordinance.
3. Original text can be found at Copyright Protection in the Digital Environment--Code of Practice.
4. New section 88B of the Ordinance.
5. New sections 88C to 88J of the Ordinance.
6. New sections 88B(3) and 88I of the Ordinance.
7. Paragraph 1.4 of the Code.
8. New sections 65A(2) and 88A of the Ordinance.
9. "Information location tools" include directories, indexes, references, pointers, or hypertext links that refer users to an online location. See section 65A(2) of the Ordinance.
10. Paragraphs 4.15 to 4.25 of the Code.
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