LCQ3: Copyright (Amendment) Ordinance 2007
Following is a reply by the Secretary for Commerce and Economic Development, Mr Gregory So, to a question by the Hon Ronny Tong in the Legislative Council today (June 13):
Will the Government inform this Council, since the coming into operation of the various amendments in the Copyright (Amendment) Ordinance 2007:
(a) of the number of prosecutions instituted in respect of contravention of the Copyright Ordinance and the reasons for instituting such prosecutions, as well as the number of convictions;
(b) among such prosecutions, of the number of those instituted under section 118 of the Copyright Ordinance, as well as their respective types, the final judgments passed and the penalties imposed; and
(c) whether the authorities have taken law enforcement actions against online infringement under the Copyright Ordinance; if they have, of the criteria for taking such law enforcement actions; if not, the enforcement difficulties; and the circumstances under which prosecutions are instituted against suspected online infringement?
The criminal provisions of the Copyright Ordinance are currently found in sections 118, 119A, 119B, 120, 124, 130 and 273C. Among these, sections 119B and 273C were introduced by the Copyright (Amendment) Ordinance 2007.
With regard to parts (a) and (b) of the question, our reply is as follows:
Between August 2007 (i.e. after the first batch of provisions of the Copyright (Amendment) Ordinance 2007 came into effect) and April 2012, the Customs and Excise Department (C&ED) instituted 2 740 prosecutions under section 118 which involved 4 303 charges resulting in 3 532 convictions. The imprisonment sentence ranged from two days to 35 months, and the fine from $500 to $80,000. Details of the types of charges, the verdicts and the penalties imposed are set out in the Annex. C&ED also instituted 60 and 68 prosecutions under sections 119A and 273C respectively which involved 71 and 111 charges resulting in 69 and 88 convictions respectively. During the same period, C&ED did not institute any prosecution under the other criminal provisions.
With regard to part (c) of the question, our reply is as follows:
The existing Copyright Ordinance already grants copyright owners different exclusive rights. In particular, section 26 specifically restricts the making available of copies of work to the public through the Internet. Any person who makes available copies of a copyright work through the Internet without the authorisation of the copyright owner may attract civil liability.
As regards criminal liability, the various criminal provisions in the Copyright Ordinance may also apply to online infringing activities depending on the circumstances. For example, sections 118(1)(e) and (g) target offences involving the distribution of infringing copies. It has been affirmed by the Hong Kong Court of Final Appeal in HKSAR v Chan Nai-ming (commonly known as the "Big Crook" case) that "distribution" instead of being limited to conventional distribution of hard copies also covers distribution of electronic copies through the Internet.
As always, the Government has been taking robust law enforcement actions against online infringing activities, and has adopted the same criteria in the enforcement and prosecution of online infringement cases as in other types of infringement cases. C&ED will of course require a copyright owner to prove the subsistence of copyright in a work, and will need to collect evidence showing that copyright infringement has taken place.
C&ED has established two "Anti-Internet Piracy" Teams to take charge of investigations concerning online infringing activities. C&ED will continue to make use of advanced computer techniques, computer forensics and network investigation tools with a view to enhancing enforcement effectiveness. An Electronic Crime Investigation Centre will also be set up to enhance the capabilities of C&ED in taking enforcement actions and handling digital evidence.
Given the special nature of online infringement, C&ED will make appropriate deployment in its investigation and evidence collection work. For example, in view of the organised and transnational nature of online infringement, C&ED has been striving to work with the Mainland and overseas law enforcement agencies for joint operations so as to effectively deter online infringing activities. Owing to the borderless nature of the Internet, it will be difficult for the law enforcement agency of any single country or region to wipe out online piracy syndicates alone. C&ED will continue to enhance co-operation with other law enforcement agencies to combat online infringing activities.
Wednesday, June 13, 2012