Hong Kong Ordinances

COPYRIGHT ORDINANCE - SECT 118

Offences in relation to making or dealing with infringing articles, etc.*

Caution: This is a past version. See the current version here.

Offences

(1) A person commits an offence if he, without the licence of the copyright
owner of a copyright work-

   (a)  makes for sale or hire an infringing copy of the work;

   (b)  imports an infringing copy of the work into Hong Kong otherwise than
        for his private and domestic use;

   (c)  exports an infringing copy of the work from Hong Kong otherwise than
        for his private and domestic use;

   (d)  sells, lets for hire, or offers or exposes for sale or hire an
        infringing copy of the work for the purpose of or in the course of any
        trade or business;

   (e)  exhibits in public or distributes an infringing copy of the work for
        the purpose of or in the course of any trade or business which
        consists of dealing in infringing copies of copyright works;

   (f)  possesses an infringing copy of the work with a view to-

        (i)    its being sold or let for hire by any person for the purpose of
               or in the course of any trade or business; or

        (ii)   its being exhibited in public or distributed by any person for
               the purpose of or in the course of any trade or business which
               consists of dealing in infringing copies of copyright works; or

   (g)  distributes an infringing copy of the work (otherwise than for the
        purpose of or in the course of any trade or business which consists of
        dealing in infringing copies of copyright works) to such an extent as
        to affect prejudicially the copyright owner. (Replaced 15 of 2007 s.
        31)

(1A) Where-

   (a)  a person exhibits in public or distributes an infringing copy of a
        copyright work for the purpose of or in the course of any trade or
        business; and

   (b)  the circumstances in which the infringing copy is so exhibited or
        distributed give rise to a reasonable suspicion that the trade or
        business consists of dealing in infringing copies of copyright works,
        then, unless there is evidence to the contrary, the trade or business
        is presumed, for the purposes of any proceedings instituted under
        subsection

(1)(e), to be a trade or business which consists of dealing in infringing
copies of copyright works. (Added 15 of 2007 s. 31)

(1B) Where-

   (a)  a person possesses an infringing copy of a copyright work with a view
        to its being exhibited in public or distributed by any person for the
        purpose of or in the course of any trade or business; and

   (b)  the circumstances in which the infringing copy is so possessed give
        rise to a reasonable suspicion that the trade or business consists of
        dealing in infringing copies of copyright works, then, unless there is
        evidence to the contrary, the trade or business is presumed, for the
        purposes of any proceedings instituted under subsection

(1)(f)(ii), to be a trade or business which consists of dealing in infringing
copies of copyright works. (Added 15 of 2007 s. 31)

(2) Subsections (1)(b) and (c) and (4)(b) and (c) do not apply to an
article in transit.

(2A) A person commits an offence if he, without the licence of the copyright
owner of a copyright work to which this subsection applies, possesses an
infringing copy of the work for the purpose of or in the course of any trade
or business with a view to its being used by any person for the purpose of or
in the course of that trade or business. (Added 15 of 2007 s. 31)

(2B) Subsection (2A) applies to a copyright work that is-

   (a)  a computer program;

   (b)  a movie;

   (c)  a television drama;

   (d)  a musical sound recording; or

   (e)  a musical visual recording. (Added 15 of 2007 s. 31)

(2C) Subsection (2A) does not apply to an infringing copy of a computer
program in a printed form. (Added 15 of 2007 s. 31)

(2D) Subsection (2A) does not apply to the possession of an infringing copy of
a computer program if-

   (a)  the computer program incorporates the whole or any part of a work that
        is not a computer program itself, and the computer program is
        technically required for the viewing or listening of the work by a
        member of the public to whom a copy of the work is made available; or

   (b)  the computer program is incorporated in a work that is not a computer
        program itself, and the computer program is technically required for
        the viewing or listening of the work by a member of the public to whom
        a copy of the work is made available. (Added 15 of 2007 s. 31)

(2E) Subsection (2A) does not apply to the possession of an infringing copy of
a movie, television drama, musical sound recording or musical visual recording
by the Hong Kong Film Archive for the purpose of heritage conservation if-

   (a)  the infringing copy was donated or given to the Hong Kong Film Archive
        by the public; or

   (b)  the infringing copy was made by the Hong Kong Film Archive to preserve
        or replace the infringing copy referred to in paragraph (a) against
        loss, deterioration or damage. (Added 15 of 2007 s. 31)

(2F) Subsection (2A) does not apply to the possession of an infringing copy of
a movie, television drama, musical sound recording or musical visual recording
by the Hong Kong Film Archive for the purpose of doing any act in relation to
the infringing copy (other than for the purpose referred to in subsection
(2E)) if-

   (a)  the infringing copy was-

        (i)    an infringing copy donated or given to the Hong Kong Film
               Archive by the public; or

        (ii)   an infringing copy made by the Hong Kong Film Archive to
               preserve or replace the infringing copy referred to in
               subparagraph (i) against loss, deterioration or damage;

   (b)  it is not possible by reasonable enquiry to ascertain the identity and
        contact details of the copyright owner of the work in question; and

   (c)  a copy (other than an infringing copy) of the work in question cannot
        be obtained on reasonable commercial terms. (Added 15 of 2007 s. 31)

(2G) Subsection (2A) does not apply if-

   (a)  the person who possesses an infringing copy does so for the purpose of
        providing legal service in relation to the infringing copy, and-

        (i)    the person is enrolled on the roll of solicitors or the roll of
               barristers kept under the Legal Practitioners Ordinance (
               Cap 159); or

        (ii)   the person has been admitted as a legal practitioner in a
               jurisdiction other than Hong Kong;

   (b)  the person who possesses an infringing copy is serving a pupillage
        under the Barristers (Qualification for Admission and Pupillage) Rules
        ( Cap 159 sub. leg. AC) and he possesses the infringing copy for the
        purpose of assisting the barrister with whom he serves the pupillage
        in providing legal service in relation to the infringing copy;

   (c)  the person who possesses an infringing copy does so for the purpose of
        providing investigation service in relation to the infringing  copy to
        the copyright owner or exclusive licensee of the copyright work
        concerned; or

   (d)  the person who possesses an infringing copy does so on his client's
        premises and the infringing copy is provided to him by his client.
        (Added 15 of 2007 s. 31)

(3) It is a defence for the person charged with an offence under subsection
(1) or (2A), to prove that he did not know and had no reason to believe that
the copy in question was an infringing copy of the copyright  work. (Amended
15 of 2007 s. 31)

(3A) It is a defence for the person charged with an offence under subsection
(2A) to prove that-

   (a)  he possessed the infringing copy in question in the course of his
        employment; and

   (b)  the infringing copy in question was provided to him by or on 
        behalf of his employer for use in the course of his employment. (Added
        15 of 2007 s. 31)

(3B) Subsection (3A) does not apply to an employee-

   (a)  who, at the time when the infringing copy in question was acquired,
        was in a position to make or influence a decision regarding the
        acquisition of the infringing copy; or

   (b)  who, at the time when the offence in question was committed, was in a
        position to make or influence a decision regarding the use or removal
        of the infringing copy in question. (Added 15 of 2007 s. 31)

(4) A person commits an offence if he-

   (a)  makes;

   (b)  imports into Hong Kong;

   (c)  exports from Hong Kong;

   (d)  possesses; or

   (e)  sells or lets for hire, or offers or exposes for sale or hire, an
        article specifically designed or adapted for making copies of a
        particular copyright work which article is used or intended to be used
        to make infringing copies of the copyright work for sale or hire or
        for use for the purpose of or in the course of any trade or business.
        (Amended 64 of 2000 s. 7; 15 of 2007 s. 31)

(5) It is a defence for the person charged with an offence under subsection
(4) to prove that he did not know and had no reason to believe that the
article was used or was intended to be used to make the infringing copies for
sale or hire or for use for the purpose of or in the course of any trade or
business. (Amended 64 of 2000 s. 7; 15 of 2007 s. 31)

(6) For the purpose of subsections (1)(b) and (3), where a person is charged
with an offence under subsection (1) in respect of a copy of a copyright work
which is an infringing copy by virtue only of section 35(3) and not being
excluded under section 35(4) and which was lawfully made in the country,
territory or area where it was made, if he proves that- (Amended 15 of 2007 s.
31)

   (a)  he had made reasonable enquiries sufficient to satisfy himself that
        the copy in question was not an infringing copy of the work;

   (b)  he had reasonable grounds to be satisfied in the circumstances of the
        case that the copy was not an infringing copy;

   (c)  there were no other circumstances which would have led him reasonably
        to suspect that the copy was an infringing copy, he has proved that he
        had no reason to believe that the copy in question was an
        infringing copy of the copyright work.

(7) In determining whether the person charged has proved under subsection (6)
that he had no reason to believe that the copy in question was an
infringing copy of the work, the court may have regard to, including but not
limited to, the following-

   (a)  whether he had made enquiries with a relevant trade body in respect of
        that category of work;

   (b)  whether he had given any notice drawing attention of the copyright
        owner or exclusive licensee to his interest to import and to sell the
        copy of the work;

   (c)  whether he had complied with any code of practice that may exist in
        respect of the supply of that category of work;

   (d)  whether the response, if any, to those enquiries made by the defendant
        was reasonable and timely;

   (e)  whether he was provided with the name, address and contact details of
        the copyright owner or exclusive licensee (as the case may be);

   (f)  whether he was provided with the date of first day of publication of
        the work;

   (g)  whether he was provided with proof of any relevant exclusive  licence.

(8) A person commits an offence if he has in his possession an article knowing
or having reason to believe that it is used or is intended to be used to make
infringing copies of any copyright work for sale or hire or for use for the
purpose of or in the course of any trade or business. (Amended 64 of 2000 s.
7; 15 of 2007 s. 31)

(8A) (Repealed 15 of 2007 s. 31)

(9) Sections 115 to 117 (presumptions as to various matters connected with
copyright) do not apply to proceedings for an offence under this section. <* Note - Exp. X-Ref.: Sections 115, 116, 117 *>

(10) In this section, "dealing in" (經銷) means selling, letting for hire,
or distributing for profit or reward. (Added 15 of 2007 s. 31) [
cf. 1988 c. 48 s. 107 U.K.]
___________________________________________________________________________
______________ Note:

* (Amended 15 of 2007 s. 31) "dealing in" (經銷)