In cases where the copyright owner does not object or seek legal recourse, will the Government insist on prosecuting the copyright offence without involving the copyright owner?
- Absolutely not.
- According to the criminal provisions in the Copyright Ordinance, the most fundamental element of copyright offences is that the relevant acts have been conducted without the consent of the copyright owner and thereby constitute copyright infringement. If the copyright owner does not object or pursue the matter any further, there is no basis for the enforcement agency to follow up any criminal investigation, not to mention laying a prosecution.
- In practice, if the enforcement agency comes across an act which is alleged or reasonably suspected to be constituting a copyright offence, it must take the necessary step to promptly locate and contact the copyright owner to see if he has any objection or wishes to pursue the matter further. It is only when the copyright owner wishes to pursue the matter further that the enforcement agency has reasons to consider further steps.
Even if the copyright owner wishes to pursue the matter further, he must prove to the enforcement agency in investigations
- (a) the subsistence and legitimate ownership of copyright in the underlying work; and
- (b) that the work in question has indeed infringed such copyright.
The enforcement agency will only refer the case to the Department of Justice for consideration of whether to prosecute if such key evidence and all other necessary evidence are available.
- If during the process, the copyright owner fails to provide sufficient evidence, or changes his stance and considers that there is no copyright infringement (e.g. the parties reach a settlement in the litigation), the enforcement agency will not be able to continue its investigation or prosecution.