The Commerce, Industry & Technology Bureau has proposed a host of refinements to its preliminary copyright-related proposals. They cover business end-user criminal liability, circumvention of technology measures for copyright protection and parallel importation of copyright works.

The bureau said it will liaise with stakeholder groups in developing the proposals before tabling the amendment at the Legislative Council early next year.

One idea is to introduce a new business end-user criminal offence for significant infringements involving copying for distributing or distributing infringing copies of newspaper, magazine, periodical and book works.

It is also proposed to specify numerical perimeters for the "safe harbour" of the offence within which the infringing acts will not attract criminal liability.

After considering public concerns, the Government considers the proposed criminal offence should not cover casual or ad-hoc copyright infringements for business end-users because this already attracts civil liability.

It therefore proposes to limit the proposed business end-user copying-distribution offence for copyright works published in the four types of printed works to regular or frequent infringements only.

Safe-harbour perimeters

It proposes to lay down the following numerical perimeters for "safe harbour":

* for copyright works in newspapers, magazines and periodicals (excluding academic journals), the proposed criminal offence will not apply if the number of infringing copies made for distribution or distributed does not exceed 1,000 copies within any 14-day period; and,

* for copyright works in books (including academic journals), the proposed criminal offence will not apply if the total retail value of the infringing copies made for distribution or distributed within a 180-day period does not exceed $8,000, assuming that one infringing copy of more than 15% of the number of pages of the book concerned (a qualifying infringing copy) only will count for the purpose of calculating the retail value perimeter.

Non-qualifying infringing copies will not count for the purpose of retail value calculation except when the cumulative number of copies made or distributed within the 180-day period exceeds half the number of pages of the book concerned, in which case all the non-qualifying infringing copies together will count for the purpose of calculating the retail value perimeter.

In its preliminary proposals, the Government suggested that if a body corporate or a partnership committed an act attracting any business end-user criminal offence, the director(s) of the body corporate or the partner(s) of the partnership would be equally liable in the same case unless there is evidence showing the partners have not authorised the infringing act.

The Government accepts it may be too onerous to impose a criminal liability on all directors and partners. Accordingly, it proposes to limit the scope of the proposed criminal liability to cover only those directors, partners or people that conduct chief executive functions.

It has also suggested in its preliminary proposals to introduce a new criminal offence against the commercial dealing of devices, products or components to circumvent effective technological measures for copyright protection applied to a copy of copyright work, or the provision of commercial service to enable or facilitate the circumvention of such effective technological measures.

Sanction scope narrowed

After considering feedback from the computer game industry and user groups, it proposes to narrow the scope of the proposed criminal sanction so it will not cover those copyright protection technological measures that are applied to a copy of a copyright work embodied in a physical article and also have the effect of controlling market segmentation through area code restriction.

The proposed criminal sanction will only apply to physical copies of computer games protected by effective technological measures which do not have an area code restriction function.

The Government has refined its preliminary proposals to provide civil remedies against the act of circumvention of effective technological measures, including both copy protection measures and access control measures, applied to copyright works to prevent infringements.

It proposes to narrow the scope of the proposed civil liability so it only applies if the person who commits the act of circumvention knows or has reasonable grounds to know they are pursuing a circumvention objective and with a view to inducing, enabling, facilitating or concealing an infringement of copyright.

Exemptions proposed

It is proposed that exemptions from any liability in respect of circumvention activities should be broadened. The Government will explore with copyright owners suitable formulation to give effect to the exemptions.

On parallel importation of copyright works, while user groups in general have demanded further liberalisation of parallel imports, copyright owners in the film, music and publication industries have strongly objected to any shortening or removing of the 18-month criminal liability period.

The Government has proposed to further liberalise parallel importation by:

* removing the civil and criminal liability pertaining to the importation and possession for use of parallel imports of copyright works by all business end-users except those for commercial dealing purposes; and,

* reducing the period during which parallel imports would attract criminal liability to nine months after public release.

Given the music and film industries' grave concern that complete liberalisation would enable local businesses such as karaoke, coffee shops and restaurants to parallel import and play or show in public new songs or movies still being promoted or screened in cinemas in Hong Kong, it is proposed that the relaxation for business end-use will not apply to parallel imported musical sound recordings, musical visual recordings, movies and TV dramas used for public performance purposes. 

Any views on the refined proposals can be emailed to co_review@citb.gov.hk.