Comments on the Draft Copyright Bill

Hong Kong Coalition of Service Industries

(December 1996)

1. The Hong Kong Coalition of Service Industries welcomes the opportunity to comment on the Draft Copyright Bill. The following are comments following consultation with the Coalition's Information Services Committee.
2. Broadcasts (Section 7(1))

   It seems strange that the term "wireless telegraphy" is used here. This is generally regarded as a narrow term in its conventional definition, relating to transmission of alphanumeric characters. It would seem that a better term to use, that would be less open to misinterpretation would be either "radio communication" or (if that is deemed to cover communication via a physical medium using radio frequencies) "wireless telecommunications". The conventional interpretation of either of these is broad enough to cover sound and visual images as well as textual information.

3. Duration (Section 16)

   This section does not seem to cover the case where the author of the work is an employee, and first ownership of copyright belongs to a business. Is it intended that the duration of copyright is 50 years from the calendar year in which the employee dies? Does this mean that a business must keep track of all employees who authored a copyright work until they die, even after leaving the business's employ? It seems not to be practical. A more practical solution would be that copyright in a work where the first owner is a business should last for 50 years from the end of the calendar year in which it was first made available to the public.

4. Decompilation (Section 57)

   Insofar as decompilation is allowed for purpose of interoperability, it should be observed that interoperability has now become a key attribute of the software market. From the point of view of encouraging innovation and protecting copyright, there should be a presumption against decompilation of computer software programmes, which should be reflected in the language of the bill.

5. Rental rights (Section 72-3)
   1. In the HKCSI's "Response to the Consultative Document on Reform of the Law relating to Copyright" in 1991, we submitted that "We are of the view that rental rights should belong to copyright holders and this should be enshrined in law." We are pleased that this is now indeed the case as proposed in the bill in respect of sound recordings and computer programmes. In the latter case, because of the ease with which computer programs can be copied and the relatively high cost of programs, uncontrolled rental of computer programs may lead to their widespread illegal copying. It is primarily for this reason that a software rental right was included in TRIPS.
   2. We recognise the role of the Copyright Tribunal in adjudicating disputes over royalties but in so doing, the Tribunal might have the unintended effect of distorting the functioning of the free market. Although this is not a matter related to the bill itself but rather to its functioning, insofar as the need for a Tribunal has arisen out of concerns over competition, there might be a case for reviewing the role of the Tribunal in light of current discussion over the need or otherwise for a competition law for Hong Kong.
6. Requirement that right be asserted (Section 84(2)(b))

   Reference is made here, and in a number of other sections (e.g. 84(3)(b), 92(3), 95(3) & 97(1)) to "writing"/written" and "signed"/"signature"/signing". It would seem that the intention of the definition of "writing" in section 191 ought to cover non-paper or non-physical media, such as electronic (computer) data and so forth. It is not clear however, whether this would extend to, for example, an e-mail message that has been signed using, say, a digital signature using public/private key encryption. In view of the increasing prevalence of electronic commerce, the proposed ordinance should allow for modern business practices.

7. Infringement (Section 101(3))

   This has not covered the situation where an infringing copy has not been issued by digital transmission through a telecommunications service operated under a PNETS Licence. Not all services need a PNETS licence, and some may operate without a licence even if they need one. The copyright owner should not be disadvantaged simply because a service provider does not need, or has not applied for, a licence. A better wording might be on the lines of "... a telecommunications service operated in Hong Kong, whether it is licensed or not under the Telecommunications Ordinance ..."

8. Signature (Section 190)

   There is no definition of signature. It would appear that the bill should cover electronic as well as manuscript signatures, and this should be defined in the bill.

(Ends)

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