Policy Statement & Submission

9 January 2004


Ms Pancy S H Fung
Assistant Director of Intellectual Property
Intellectual Property Department
25/F Wu Chung House
213 Queen's Road East
Wanchai
Hong Kong


Dear Ms Fung

Copyright Ordinance: End-user liability in respect of published works

1. The Chamber has been following closely with your Department the progress of the amendment to the Copyright Ordinance. We note the tentative proposal put forward recently by copyright stakeholders in regard to possible criminal business end-user liability relating to photocopying of newspapers, periodicals and other publications. We have consulted our members and our views are set out as follows.

2. In summary, the proposal seeks to introduce criminal business end-user liability against photocopying, subject to three conditions, namely:

(a) introducing the “fair use” principle into the Copyright Ordinance, similar to the relevant US provisions (Section 107 of the US Copyright Law);

(b) developing detailed guidelines to supplement the fair use provisions by clarifying the meaning of “fair use” in certain given circumstances; and

(c) defining clearly the scope of the proposed criminal end-user offence in the Copyright Ordinance, so that only willful copying causing substantial loss to the copyright owner will be caught.

3. While some of our members do find merits in the tentative proposal, we have reservations over whether this is suited for Hong Kong.

4. In general, our members do not favour criminalisation of photocopying, for two major reasons.


(i) While the rights of copyright holders are respected, at present there are already adequate remedies under civil law if material loss is incurred upon copyright infringement.

(ii) Criminalisation should be for serious offences. It is considered not likely for photocopying to be a serious offence of sufficient magnitude to warrant a criminal sanction.

5. We consider the principle of “fair use” a reasonable one, and we agree entirely that guidelines must be produced to clarify how the principle can be put into practice. But this does not logically give rise to criminal provisions when “fair use” is breached.

6. If criminalisation were the way to go, then limiting criminality in copying to that which is willful and causes substantial loss would seem a sensible approach. Before that is contemplated, however, two prerequisites will have to be met.

(i) Firstly, the case for criminalisation will have to be more convincingly established. There needs to be a stronger body of evidence supporting the assertion that the publishing industry is being threatened by photocopying.

(ii) Secondly, there must be a fair and sensible licensing scheme, with proper government oversight and check-and-balance, to ensure that the licensing body is acting responsibly and not abusing their position.

7. The crux of the matter is to strike a balance of interest between copyright holders and users. We are not convinced yet that the right balance is achieved through introducing criminal sanctions.

Yours sincerely





Dr Eden Woon
CEO