Hong Kong Ordinances

COPYRIGHT ORDINANCE - SECT 35

Meaning of "infringing copy"

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

Infringing copy

(1) In this Part "infringing copy" (侵犯版權複製品), in relation to a
copyright work, is to be construed in accordance with this section.

(2) A copy of a work is an infringing copy if its making constituted an
infringement of the copyright in the work in question.

(3) Except as provided in section 35A, a copy of a work other than a copy of
an accessory work is also an infringing copy if- (Amended 27 of 2003 s. 2)

   (a)  it has been or is proposed to be imported into Hong Kong; and

   (b)  its making in Hong Kong would have constituted an infringement of the
        copyright in the work in question, or a breach of an exclusive 
        licence agreement relating to that work.

(4) For the purposes of sections 118 to 133 (criminal provisions) "infringing
copy" (侵犯版權複製品) does not include a copy of a work- <* Note - 
 Exp. X-Ref.:
Sections 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131,
132, 133 *>

   (a)  that was lawfully made in the country, territory or area where it was
        made;

   (b)  that has been or is proposed to be imported into Hong Kong at any time
        after the expiration of 18 months beginning on the first day of
        publication of the work in Hong Kong or elsewhere; and

   (c)  its making in Hong Kong would have constituted an infringement of the
        copyright in the work in question, or a breach of an exclusive 
        licence agreement relating to that work, or a copy of an
        accessory work-

        (i)    that was lawfully made in the country, territory or area where
               it was made;

        (ii)   that has been or is proposed to be imported into Hong Kong; and

        (iii)  its making in Hong Kong would have constituted an infringement
               of the copyright in the work in question, or a breach of an
               exclusive licence agreement relating to that work.

(5) For the purposes of Division VII (proceedings relating to importation of
infringing articles), "infringing copy" (侵犯版權複製品) does not
include a copy of a work or a copy of an accessory work-

   (a)  that was lawfully made in the country, territory or area where it was
        made;

   (b)  that has been or is proposed to be imported into Hong Kong; and

   (c)  its making in Hong Kong would have constituted an infringement of the
        copyright in the work in question, or a breach of an exclusive 
        licence agreement relating to that work.

(6) Where in any proceedings the question arises whether a copy of a work is
an infringing copy and it is shown-

   (a)  that it is a copy of the work; and

   (b)  that copyright subsists in the work or has subsisted at any time, it
        shall be presumed until the contrary is proved that the copy was made
        at a time when copyright subsisted in the work.

(7) In this Part "infringing copy" (侵犯版權複製品) includes a copy
which is to be treated as an infringing copy by virtue of any of the following
provisions- section 41(5) (copies made for purposes of instruction or
examination); section 44(3) (recordings made by educational establishments for
educational purposes); section 45(3) (reprographic copying by
educational establishments for purposes of instruction); section 46(4)(b)
(copies made by librarian or archivist in reliance on false declaration);
section 64(2) (further copies, adaptations, etc. of work in electronic  form
retained on transfer of principal copy); section 72(2) (copies made for
purpose of advertising artistic work for sale); or section 77(4) (copies made
for purpose of broadcast or cable programme).

(8) For the purpose of subsections (3), (4) and (5), "accessory work"
(附屬作品) means a work incorporated in or consisting of-

   (a)  a label affixed to, or displayed on, an article;

   (b)  the packaging or container in which an article is packaged or
        contained;

   (c)  a label affixed to, or displayed on, the packaging or container in
        which an article is packaged or contained;

   (d)  a written instruction, warranty or other information incidental to an
        article and provided with the article on its sale; or

   (e)  an instructional sound recording or film incidental to an article and
        provided with the article on its sale, and the economic value of the
        article (inclusive of the label, packaging, container, instruction,
        warranty, other information, sound recording or film, as the case may
        be) is not predominantly attributable to the economic value of the
        work.

(9) (Repealed 27 of 2003 s. 2) [ cf. 1988 c. 48 s. 27 U.K.] "infringing copy"
(侵犯版權複製品) "accessory work" (附屬作品)