《葉謝鄧》合伙人


  • 葉謝鄧律師行:分行多、律師眾、資歷厚、經驗豐、實力強
    高級合伙人:謝連忠律師。執業14年‧創辦葉謝鄧律師行‧曾接受各大媒體無數訪問、婚姻監禮人。
    疏忽傷亡索償管理合伙人:謝連豐律師。本行辦超過600宗傷亡索償,賠償總額億計。
    債務重組、破產案管理合伙人:孫楚雍律師。本行已辦理過千宗IVA、超過五千宗破產。
    樓宇買賣、贖樓、IVA、破產案合伙人:鄧達明律師。本行已辦理過千宗IVA、超過五千宗破產。

Hot Sites



Hyperlinking and Deeplinking

The world wide web has enable various web-sites, albeit owned individually by their owners, to virtually operate like one 'book'. The use of hyperlinks on web pages practically results in zero differentiation among contents of each of the web-sites. Any web-sites and in fact any pages on the Internet can be easily hyperlinked and such hyperlinking can be done without any knowledge or authorisation of the web-site being hyperlinked.

Web-site operators have the temptation of linking the inner content of certain web-sites interesting to them, thereby enriching their contents but at the same time, bypassing the front page and less inner pages of the web-sites. Such doing can or may offend the owner of the web-site being hyperlinked as integrity of the web-site is 'damaged', pages are bypassed thereby reducing the number of banner exposure.

A prudent web-site owner should adopt the following rule of thumbs when considering linking:

1. design the web-site with simple hyperlink only. Hyperlink should lead the user to the home page (first page) of the linked web-site.

2. use of trade mark or logo in the hyperlinks should be authorised by the trade mark and logo owner

3. do not deeplink other web-sites without prior consent or authorisation

4. do not link other web-sites by 'framing' unless with prior consent or authorisation.

Secure Digital Music Initiative (SDMI)

In 1999 the Recording Industry Association of America (RIAA), a New York not-for-profit corporation with a place of business in Washington D.C. 20036, corralled technology companies to form the Secure Digital Music Initiative (SDMI). The group set out to establish a system through which the public's use of digital audio files could be strictly governed. RIAA is . It represents entities which manufacture and distribute sound recordings, including the five major labels and many of their subsidiary labels.

SDMI quickly gained its reputation as a place where RIAA members could manipulate technology manufacturers.

Digital audio watermarks are frequency patterns imbedded within a recording that carry instructions. SDMI compliant files utilize techniques such as digital watermarking to dictate "usage rules" to SDMI compliant devices. For instance, dictating SDMI devices enforce the rules placed on a song by the record company about the number of copies that may be made of a file.
Security professionals have found the audio watermarks utilized by SDMI to be relatively easy to defeat.

The DMCA outlaws bypassing "digital straight jackets" put in place by the Copyright holder. It also outlaws telling others how to bypass those straight jackets. The computer code that describes how to circumvent the technology also teaches how the technology works. The RIAA, SDMI and Verance do not want security professionals published the code because it describes how the technology works and they have all made threats against security professional like Professor Felten of Princeton University, his research team and the conferences that publish his work that they are 'providing a circumvention device in violation of the DMCA'.

Professor Felten is one of the plaintiffs in EFF's challenge of the DMCA. The noted scientist is the leader of a research team that participated in the Secure Digital Music Initiative's (SDMI) "Public Challenge" (also know as "Hack SDMI") and successfully defeated the technology. His team authored, "Reading Between the Lines: Lessons from the SDMI Challenge," explaining their research findings that was accepted for publication at the 4th International Information Hiding Workshop Conference in April 2001. Just prior to the conference, the Princeton Professor received a letter from Matt Oppenheim from the Recording Industry Association of America (RIAA) and the Secure Digital Music Initiative (SDMI) that threatened a lawsuit against Professor Felten's team and their universities and the workshop organizers if the paper was published.

The Electronic Frontier Foundation asked the court to declare that Felten and the rest of his research team have the right to publish their paper and discuss their findings with others. The argument is based on the right of free of expression under the First Amendment of the US Constitution and fair use under the copyright laws.

June 2001

Pavlovich v. DVDCCA (the CA DVD case)

According to the Electronic Frontier Foundation, the DVD Copy Control Association (DVD-CCA), a newly formed mouthpiece of the MPAA, is suing dozens of individuals who put DeCSS on their Web sites (in various places around the country and around the world), alleging that plaintiffs misappropriated trade secrets when they reverse engineered DVD technology. On December 13, 2000 the California Supreme Court granted defendant Matthew Pavlovich's petition for review based on lack of personal jurisdiction over him, sending the matter back to the trial judge to show why the non-California resident should remain in the case, marking a victory for EFF.

At issue: Same First Amendment implications as the NY case; also whether the pretense of "trade secrets" will enable companies to punish those engaged in lawful reverse engineering.

Universal v. Reimerdes (a.k.a. the NY DVD case)

Eight major motion picture studios brought a suit under the DMCA against defendant, 2600 Magazine to enjoin it from publishing or linking to DeCSS, a computer program that circumvents the encryption on DVDs, called CSS.

According to the Electronic Frontier Foundation (eff.org), the case arises from 2600 Magazine's publication of and linking to a computer program called DeCSS in November, 1999 as part of its news coverage about DVD decryption software. DeCSS decrypts movies on DVDs that have been encrypted by a computer program called CSS. Decryption of DVD movies is necessary in order to make fair use of the movies as well as to play DVD movies on computers running the GNU/Linux operating system.

The Movie Studios have sued 2600 Magazine under the DMCA which prevents the publication of programs that can decrypt DVDs or other digital media. Most recently the law was used to frighten a Princeton Computer Science Professor, Edward Felton, from presenting a paper describing how to break proposed watermarks on CDs at a scientific conference.

At issue: Whether fair use, free software, linking and reverse engineering will survive the digital age.

The Digital Millennium Copyright Act ("DMCA") in the US

The Digital Millennium Copyright Act ("DMCA") was passed on 4th August 1998 by the House of Representatives, USA over the objections of scientists, librarians and cryptographers. As it has been interpreted by the courts thus far, the DMCA bans devices whose primary purpose is to enable circumvention of technical protection systems, and also prohibits the circumvention of technological protection or access control measures used by copyright owners. These are called the 'anti-circumvention provisions'.

The Electronic Frontier Foundation (EFF), a non-profit advocating organization on free speech and privacy commented that "DMCA is very bad news because it tilts the delicate balance between copyright and First Amendment too heavily toward the copyright holders. This is because circumventing access controls is necessary in order to make fair use and many kinds of ordinary, legal uses of DVDs, such as playing them on Linux machines."

Date: 29 May 2001

Copyright in the Cyberspace FAQ

Q: Do copyright laws apply to publications made on the Internet?
A: Yes. Anybody connected to the Internet can easily post messages on the world wide web through message board, chat room and newsgroup. Copyright laws equally apply to Internet publications despite its easy and convenient use and access.

Q: On what law copyright is based upon?
A: The Copyright Ordinance gives express provisions on copyright.

Q: Does the copyright owner has to register his rights in order to obtain the legal protection?
A: No. Unlike other intellectual property rights such as trade mark and patent, copyright does not require any registration. Under the Berne Convention, Governments should not set any registration procedures as a condition of copyright protection.

Q: What works have copyright protection?
A: They are literary, dramatic, musical or artistic works, sound recordings, films, broadcasts or cable programs; and typographical arrangement of published editions.

Q: Any particular criteria is required for getting legal protection?
A: The works should not be ideas. It must be an expression. The works must also be original and satisfy the criteria of fixation. Fixation requires a work 'fixed' on certain media such as a poem written down on a piece of paper, musical works recorded in a tape. Works stored in the hard disk of a web server satisfies the fixation requirement.

Q: Does it amount to infringement by uploading musical works e.g. a song of Nicholas Tse from a licensed CD to the Internet for public download?
A: A purchased CD is licensed for personal listening only. Uploading musical works on the Internet would copy the song onto the hard disk of the web server thereby duplicating the work. As the duplication is open for public download, it violates the licence. It is also likely that the uploader has committed the restricted act of making available copies for copying.

Q: Does it amount to infringement if I do not copy the news article word by word and I do not copy the entire content?
A: The copyright owner only has to prove substantial copying. Substantiality means quantity and/or quality of copying and is decided based on facts of the case. In law, word by word copying is called literal copying. However, non-literal i.e. indirect copying is still an infringement.

Q: Why mp3.com settled litigation cases with the musical copyright agents?
A: mp3.com's legal position is comparatively weak. There are previous cases decided by the American court similar to mp3.com's context. They have all decided in favour of the copyright owner. The Playboy v. Frena case related to uploading of gif files (digitised by scanning from Playboy magazine) on BBS. The Sega v Maphia case related to uploading of game programs on BBS for download. However, these two cases are not binding on the Hong Kong Courts.

Q: Will Napster face the fate of being closed down by the American Court?
A: Napster is not like mp3.com. Napster does not upload any musical works on the Internet by itself. Users download the computer program and have it installed at its own PC, enabling musical files exchanged and download which people of Napster.com does not play a part. It is like manufacturer producing double cassette for people making copies (CBS Songs v Amstrad); RIO manufactures mp3 player for people to copy their favourite songs onto the mp3 player. In both cases the copyright owners failed in their legal action. But it should also be noted that recently HP has settled a legal action by agreeing to pay a certain sum of money to the copyright agent for every CD Writer produced by HP. It is highly likely that Napster's case will be settled out-of-court by the parties by Napster agreeing to pay royalties to the copyright agents.

Prevention of Copyright Piracy Ordinance

The Ordinance sets out a statutory licensing scheme for the manufacture of optical discs in Hong Kong. The Ordinance also stipulates that all optical discs produced in Hong Kong have to be permanently marked with a code indicating their source of manufacture.

The Ordinance also contains extensive enforcement provisions. It empowers Customs officers to better monitor optical disc manufacturing plants in Hong Kong and prevents them from being used for copyright infringing activities.

The main provisions of the Ordinance are:

1. All business involved in the production of optical discs in Hong Kong will be required to obtain a licence from the Commissioner of Customs and Excise.
2. Manufacturing optical disc in Hong Kong without a valid licence from the Commissioner is an offence punishable with a maximum fine of HK$500,000 and to imprisonment for up to two years on first conviction. The maximum penalties will be doubled for second and subsequent convictions.
3. All optical discs manufactured in Hong Kong must bear a unique manufacturer's code indicating their source of manufacture. The codes will be assigned by the Commissioner of Customs and Excise. Fines of up to $100,000 and up to 2 years of imprisonment for producing optical discs that do not have the manufacturer's code marked on them.
4. Customs officers will have the power to inspect all licensed premises at all reasonable times without a warrant. They can seize, seal or detain any items in connection with offences under the Ordinance.
5. The Commissioner will keep a register on licenses and information on the register will be accessible to the public.

The Ordinance will help Customs identify the factories for the manufacture of optical discs, empower them to inspect these factories and ensure that the production of optical discs in these factories is lawful.

Business Software Alliance (BSA)

The Business Software Alliance is an international organization representing leading software and e-commerce developers in 65 countries around the world. Established in 1988, BSA has offices in the United States, Europe, and Asia.

As the "voice" of the software industry, BSA helps governments and consumers understand how software strengthens the economy, worker productivity and global development; and how its further expansion hinges on the successful fight against software piracy and Internet theft.

Their efforts include educating computer users about software copyrights; advocating public policy that fosters innovation and expands trade opportunities; and fighting software piracy.
Source: www.bsa.org/hongkong/about

Reference Web-site: http://www.bsa.org/hongkong

Control of Anti-circumvention Device

It attracts civil liability to a person who deals with anti-circumvention devices or publishes information enabling such circumvention. The electronic circumvention mechanism includes encryption or digital watermark as happens in DVD and musical recordings of Secure Digital Music Initiative (SDMI). In Hong Kong, we have the example of Cable TV decoder. Such Cable TV decorder can be bought in China at just around $300. No authorisation is given by Cable Television Limited, the sole broadcaster of Cable TV in Hong Kong, to connect the decorder to the programme cable. The connection violates the right of 'making available the works to the public'. 'Making available' includes making available through wire or wireless means. Cable TV is transmitted through wire means. The installation of the decorder and the receiving of the programme for watching is an infringement of Cable TV's rights.

Section 273 provides that the person issuing or making available the copies or the unfixed performance to the public has the same rights and remedies (as a copyright owner has in respect of an infringement of copyright) against a person who, knowing or having reason to believe that it will be used to make infringing copies or infringing fixations:

(a) makes, imports, exports, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire, or possesses for the purpose of, in the course of, or in connection with, any trade or business, any device or means specifically designed or adapted to circumvent the form of copy-protection employed; or
(b) publishes information intended to enable or assist persons to circumvent that form of copy-protection.

Based on the above provisions, cable programme service providers like Cable TV is entitled to take action against the home users of the unauthorised decorders as well as against the supplier of the decorder, which is known to be an anti-circumvention device. To enforce the rights, the cable programme service provider will encounter great difficulties as the infringement takes place inside private residence. It is not easy to detect and have evidence gathered. Therefore, Cable TV has recently announced to have the decorder replaced. The replacement cost amounts to billions of dollars.

Parallel Import

The present Copyright Ordinance outlaws parallel import ( ) of a copyright work. Goods of parallel import for the purpose of the Copyright Ordinance means a copy of that work which was lawfully manufactured in the country or territory where it was made. Such works, despite being authentic, are defined by the Ordinance as 'infringing copy'. According to the Ordinance, a copy of copyright work imported into Hong Kong by way of parallel import and which, if made in Hong Kong, would have either infringed the copyright in that work, or breached an exclusive licence agreement relating to the software, is regarded as an infringing copy.

Whether the goods so imported are 'infringing copy' has a time element, namely it only been published for 18 months or less.

Henceforth, if the works are so imported into Hong Kong and are possessed for the purpose of, in connection with or in the course of trade or business, it is a criminal offence. The penalty is just like possessing a 'pirated copy' of a work. The maximum penalty is $50,000 per infringing copy (which is in fact a copy so imported by parallel import) and 4 years imprisonment.

Goods having been published for more than 18 months will not attract criminal liability. It will nevertheless potentially attract civil liability under the trade mark laws.

In May, 2001, the Industry and Commerce Bureau has released for consultation a proposal to remove the criminal and civil liability elements on possession etc of computer programs imported into Hong Kong by parallel import. The proposal originated from the public's outcry of insufficient competitiveness of the market in computer programs. The consultation closes on 15 June 2001.

Who is a 'lawful user'?

Lawful user of a computer program if he has a contractual right to use the program.

The Ordinance allows 2 exceptions specially for computer program

1. Backup: A lawful user of a copy of a computer program may make a back-up copy of the program without infringing the copyright in the program if it is necessary for him to have the back-up copy for the purposes of his lawful use.

2. Decompilation of correction of errors in the program: A lawful user of a copy of a computer program may copy or adapt the program without infringing the copyright in the program if the copying or adapting is necessary for his lawful use. A lawful user of a copy of a computer program may, in particular, if it is necessary for the lawful use of the program, copy the program or adapt it for the purpose of correcting errors in it.

Computer Program

Computer programs are protected on the same basis as literary works. They include the source code and the object code.

Translation of a program into or between computer languages and codes corresponds to "adapting" a work. This is commonly called 'reverse engineering'.

Civil Liability

Copyright infringement is a cause of action in civil action. The relief available to copyright owner is: injunction (Anton Piller order), damages, account of profits, discovery order (delivery up of articles, disclosure under oath).

Criminal Liability

A person commits an offence if he, without the licence of the copyright owner:

1 makes for sale or hire;
2 imports into Hong Kong otherwise than for his private and domestic use;
3 exports from Hong Kong otherwise than for his private and domestic use;
4 possesses for the purpose of, in the course of, or in connection with, any trade or business with a view to committing any act infringing the copyright;
5 for the purpose of, in the course of, or in connection with, any trade or business:(i) sells or lets for hire;(ii) offers or exposes for sale or hire;(iii) exhibits in public; or(iv) distributes; or(v) distributes (otherwise than for the purpose of, in the course of, or in connection with, any trade or business) to such an extent as to affect prejudicially the owner of the copyright, an infringing copy of a copyright work.

'Trade or business' does not have to involve dealing with infringing copies for profit or reward. Keeping or using an infringing copy of computer program in a company whose employees make use of it for doing business, for example typing of a business letter, a contract, a quotation or making a drawing is sufficient for the offence. Trade includes profession. Therefore, professionals like lawyers, doctors will be caught by the criminal sanction. Teachers and social workers are alike.

The above provisions apply to dealing of computer program. It is punishable by a fine of up to $50,000 per copy and 4 years of imprisonment. In case of moulds, $500,000 and 8 years of infringement.

The criminal provisions have relieved the prosecution from the need of proving 'knowledge' on the part of the accused. If an accused wishes to defend the charge, he has to prove to the Court that he does not have the knowledge or has no reason to know that the article is an infringing copy.

The Customs & Excise Department is charged with the duty to receive complaints from the public in respect of copyright piracy, investigate the same.

Function or Industrial Articles

Copyright may protect the drawing from which an article is made, but it cannot prevent the manufacture of purely industrial articles.

However, articles that are replicated by an industrial process, but which are of an aesthetically pleasing appearance may be protected by copyright where the article itself is an artistic work. This includes sculptures as well as works of artistic craftsmanship. Where it is possible to obtain a registered design for such articles, the copyright term will be reduced to match the term of protection for registered designs.

Looking for Copyright Permission

Copyright is a type of intellectual property. Like physical property, it cannot usually be used without the owners permission. Of course, the copyright owner may refuse to give permission for use of their work.

Fair amount of uses (e.g. fair dealing for the purposes of research, review and news reporting; reasonable extent for the purpose of instructions or examination) may fall within the scope of one of the exceptions to copyright, but if you want to use a copyright work, you will usually need to approach the copyright owner and ask for a licence to cover the use you require. A licence is a contract between you and the copyright owner and it is for both parties to negotiate the terms and conditions, including the payment or royalty for the use. There are no rules in copyright law governing what may be acceptable terms and conditions might be relevant to licence agreements.

Sometimes copyright owners act collectively to license certain uses and collective licensing bodies can be approached for a licence. In particular, collective administration bodies exist for licensing certain uses of music and sound recordings, printed material

It is important to remember that just buying or owning the original or a copy of a copyright work does not give you permission to use it how you wish. For example, buying a copy of a book, CD, video, computer program etc only gives you the property right on the chattel. It does not usually gives you the right to make copies (even for private use), play or show them in public. Other everyday uses of copyright material, such as photocopying, scanning, downloading from a CD-ROM or on-line database, all involve copying the work so permission is generally needed. Also use going beyond an agreed licence will require further permission.

Fair Dealing for reseach or private study

"Fair dealing" with a literary, dramatic, musical or artistic work, for the purposes of research or private study does not infringe any copyright in these works or the typographical arrangement of published editions of these works.

Fair dealing has been interpreted by the courts on a number of occasions by looking at the economic impact on the copyright owner of the use; where the economic impact is not significant, the use may count as fair dealing. So, it is probably within the scope of the above fair dealing exception to make single photocopies of short extracts of a copyright work for the purposes of research or private study. It may be possible to ask a librarian to copy a short extract from a copyright work for you if you are not able to do it for yourself in a library.

The research and private study exception is a little different for databases protected by copyright. In this case, fair dealing is only possible for research for a non-commercial purpose or private study. However, not all copying from a database will infringe copyright in the database - this will depend on whether a substantial part of the database is being copied - but the contents of a database may also be protected by copyright, and extracts of the contents can, of course, only be copied if this use falls within the scope of the general "fair dealing" exception.

Fair Dealing in criticism, review or news reporting

In each case the exception is limited by the condition that there must be "fair dealing". A long extract of a work cannot be used for the purposes of criticism, review or news reporting. Use of more than this will need the permission of the copyright owner. Slightly different conditions apply to criticism and review and news reporting:

Fair dealing with a work for the purposes of criticism or review of that or another work must include a sufficient acknowledgement.

Fair dealing with a work for the purpose of reporting current events also requires sufficient acknowledgment, except where the reporting is by means of a sound recording, film or broadcast or cable programme.

Educational Establishment

Only the universities and schools defined in Schedule 1 of the Copyright Ordinance is entitled to be known as educational establishment. This includes the major schools, post-secondary schools and universities.

Private Use: fair dealing, time-shifting recording, copying artistic works in public, computer program backup

The following activities (private or personal use) do not infringe copyright:

"Fair dealing" with a literary, dramatic, musical or artistic work for the purposes of private study. This may cover the making of a single copy of a short extract of a work or other very limited use of a work, so long as it falls within the scope of the term "private study". This includes study purely for personal enjoyment.

A recording of a broadcast or cable programme can be made for private and domestic use to enable it to be viewed or listened to at a more convenient time. This time-shifting exception does not cover the making of recordings for placing in a collection for repeated viewing or listening.

Drawing, taking a photograph or making a film of buildings or sculptures and works of artistic craftsmanship in a public place or in premises open to the public.

Making a necessary back up copy of a computer program where you are a lawful user.

Moral Rights of Author

Moral rights are owned by the authors of literary, dramatic, musical and artistic works and to film directors:

· Right of Attribution: to be identified as the author of the work or director of the film in certain circumstances, e.g. when copies are issued to the public
· Right to Object Derogatory Treatment: to object to derogatory treatment of the work or film which amounts to a distortion or mutilation or is otherwise prejudicial to the honour or reputation of the author or director

Moral rights are serve the purpose of protecting the personality and reputation of authors. These are called non-economic rights.

The right to be identified cannot be exercised unless it has been asserted, i.e. the author or director has indicated their wish to exercise the right by giving notice to this effect (which generally has to be in writing and signed) to those seeking to use or exploit the work or film. Moreover, both the right to be identified and the right to object to derogatory treatment can be waived by the author or director.

Moral rights are not assignable. There are also several situations in which these rights do not apply:

· computer programs
· where ownership of a work originally vested in an author's employer
· where material is used in newspapers or magazines
· reference works such as encyclopaedias or dictionaries

Authors of literary, dramatic, musical and artistic works and film directors are given the moral right not to have a work or film falsely attributed to them.

Enforcement of Copyright

Copyright is essentially a private right so decisions about how to enforce the rights, that is what to do when the copyright work is used without permission, are generally for the copyright owner to take. Where the work has been used without permission and none of the exceptions to copyright apply, copyright is said to be infringed. Although the copyright owner is not obliged to do so, it will usually be sensible, and save time and money, to try to resolve the matter with the party who has infringed the copyright. Indeed, in some cases it may be necessary to demonstrate to a court that the plaintiff tried to solve the matter by mediation or arbitration if the plaintiff wishes the court to consider awarding you the best available remedy including an award covering your costs.

If the copyright owner cannot resolve the issue with the other party, then going to court may be the right solution, but it would be a good idea to seek legal advice at an early stage, and certainly you should consider this very seriously before going to court. One of the many organisations representing copyright owners may also be able to give you advice, or sometimes act on your behalf if you are a member.

Where a copyright owner brings a case of copyright infringement before the courts, a full range of civil remedies are available, such as:

· injunctions served against the infringer or alleged infringer (to stop that person making further infringing use of the material);
· damages (usual damages and additional damages) for infringement awarded to the copyright owner;
· orders to deliver up infringing goods to the copyright owner.

Deliberate, intentional or wilful infringement of copyright on a commercial scale may give rise to additional remedies.

Economic Rights of Copyright Owners

Copyright owners generally have the right to authorise or prohibit any of the following things in relation to their works. The Copyright Ordinance refers as 'restricted acts':

1. copying the work in any way. For example, photocopying, reproducing a printed page by handwriting, typing or scanning into a computer, and taping live or recorded music are all forms of copying

2. issuing copies of the work to the public. However, once a copy has legally been put into circulation anywhere in Hong Kong, this right cannot be used to prevent further sale of that copy, although rental and lending of computer program or sounding recording can still be controlled by the copyright owner

3. renting or lending copies of the work to the public, in case they are computer program or sound recordings

4. performing, showing or playing the work in public. Obvious examples are performing plays, playing sound recordings and showing films or videos in public. But this right also includes public delivery of lectures, speeches and the like, and letting a broadcast be seen or heard in public also involves performance of music and other copyright material contained in the broadcast

5. broadcasting the work or including it in a cable programme service i.e. cable television programmes

6. making an adaptation of the work, such as by translating a literary or dramatic work, transcribing a musical work and

7. converting a computer program into a different computer language or code

Copyright is infringed when any of the above acts are done without authorisation, whether directly or indirectly and whether the whole or a substantial part of a work, unless what is done falls within the scope of exceptions to copyright permitting certain minor uses of material.

Owner of Copyright

In the case of a literary, dramatic, musical or artistic work, the general rule is that the author, i.e. the person who created the work, is the first owner of the economic rights under copyright. However, where such a work is made in the course of employment, the employer is the first owner of these rights, unless an agreement to the contrary has been made with the author.

In the case of a film, the principal director and the film producer are joint authors and first owners of the economic rights, and similar provisions as referred to above apply where the director is employed.

In the case of a sound recording the author and first owner of copyright is the record producer; in the case of a broadcast, the broadcaster; and in the case of a published edition, the publisher.

Copyright is, however, a form of property which, like physical property, can be bought or sold, inherited or otherwise transferred, wholly or in part. So, some or all of the economic rights may subsequently belong to someone other than the first owner. In contrast, the moral rights accorded to authors of literary, dramatic, musical and artistic works and film directors remain with the author or director or pass to his or her heirs on death.

Copyright in material produced by a Government department belongs to the Hong Kong Government. The Legislative Council also owns the works produced by it.

Benefits of copyright to its owner

Copyright is a property right. That is expressly provided in the Copyright Ordinance.

It is just like any other real property or chattels that one may own. A copyright owner must decide how to exploit his copyright work and how to enforce his copyright. He can decide whether or not there will be any use of the copyright work falling within the scope of the economic rights and, if so, whether he or she will use the copyright work and/or license one or more other people to use the work.

A copyright owner can also benefit from copyright by selling or agreeing a transfer of copyright to someone else. This is called assignment.

Many of the options available to a copyright owner will involve contractual agreements which may be just as important as the rights provided by copyright law. The right contractual agreement can minimise the chances of a dispute over use of the copyright work. This is called licence. Licence is limited in scope (e.g. book version), duration (e.g. 3 years) and territory (e.g. Asia). A licence can be exclusive or non-exclusive although in most cases, it is exclusive within a limited scope.

A copyright owner may have his copyright assigned to another person or corporation in return for a price and royalties.

Copyright is automatic, registration not required

Copyright protection is automatic as soon as there is a record in any form of what has been created (there is no official registration). Such is called the requirement of 'fixation'. The usual media of fixation are paper, tape, video tape, electronic or digital recording devices such as computer hard disk, optial disk, CD and floppy disk.

When copyright material is published many would mark the work with the international copyright symbol c followed by the name of the copyright owner and year of publication. This is not essential in Hong Kong, but may assist the copyright owner in infringement proceedings, and will be needed in certain foreign countries.

How long does copyright protection last?

The term of protection or duration of copyright varies depending on the type of copyright work.

Generally speaking, the terms of protection in Hong Kong are as follows:
· Copyright in a literary, dramatic, musical or artistic work lasts for the life of the author and 50 years from the end of the year in which he/she died.
· Copyright in a film expires 50 years after the end of the year in which the death occurs of the last to survive of the principal director, the authors of the screenplay and dialogue, and the composer of any music specially created for the film.
· Copyright in a sound recording expires 50 years from the end of the year in which it was made or, if released in this time, 50 years from the end of the year of release.
· Copyright in a broadcast or cable programme expires 50 years from the end of the year of making of the broadcast or inclusion of the cable programme in a cable programme service.
Copyright in a published edition expires 25 years from the end of the year in which the edition was first published.

What is Copyright?

Copyright gives the authors of a wide range of material, such as literature, art, music, sound recordings, films and broadcasts.

The economic rights give the authors to control or use of their material in a number of ways, such as by making copies, issuing copies to the public, performing in public, broadcasting and use on-line. These rights are exclusive. Copyright work is usually the result of creative skill and/or significant labour and/or investment. If there is no protection, it would often be very easy for others to exploit work without paying the creator.

It also gives moral rights to be identified as the author of certain kinds of material, and to object to distortion or mutilation of it. Moral rights are some times called non-economic rights.

Basic Framework on Copyright

Internet allows fast and easy access to numerous online resources. Those resources are very often free to browse and print (but seldom for copying for sale). But it must be aware that despite its openness and ease of use, content posted on the Internet are protected by copyrights, subject to the satisfaction of certain requisite elements such as originality, being a copyright work under the relevant legislation (Copyright Ordinance 版權條例), being an expression (not an idea).

There are debates surrounding the use of the Internet as a place for upload and download of digitized pictures, musical works and game programs. The MP3.COM, Napster and Gnuttella are great examples on this area of debate.

Another interesting area is the use of linking on web-pages. There are several distinctive forms of linking: hyperlinking, deep-linking and framing. Hyperlinking is a form causing the least controversy. Deep-linking and framing can often lead to litigations.

Other aspects of laws are very information in view of the rising importance and value of intellectual capital. That includes confidential information, trade secrets, copyrights etc which all can find protection under the laws.

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