Hong Kong Ordinances

COPYRIGHT ORDINANCE - SECT 35

Meaning of "infringing copy"

(Past version on 28/11/2003).
(Past version on 30/06/1997).

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 otherwise provided in section 35A or 35B, 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; 15 of 2007 s. 9)

   (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, 118A, 119, 120, 121, 122, 123, 124, 125, 125, 126,
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 15 months beginning on the first day of
        publication of the work in Hong Kong or elsewhere; and (Amended 15 of
        2007 s. 9)

   (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.

(6A) Where, in any proceedings, a question arises as to whether a copy of a
work that was lawfully made in the country, territory or area where it was
made is an infringing copy by virtue only of subsection (3), and it is shown-

   (a)  in the case of a copy of a work that is stored in an optical  disc,
        that the optical disc is not marked with a manufacturer's code as
        required under section 15 of the
        Prevention of Copyright Piracy Ordinance ( Cap 544);

   (b)  that a label or mark on the copy, the article in which the copy is
        embodied or the packaging or container in which the copy is packaged
        or contained indicates that the copy was made in a country, territory
        or area outside Hong Kong; or

   (c)  that a label or mark on the copy, the article in which the copy is
        embodied or the packaging or container in which the copy is packaged
        or contained indicates that distribution, sale or supply of the copy
        is prohibited in Hong Kong or restricted to countries, territories or
        areas outside Hong Kong, then, unless there is evidence to the
        contrary, the copy shall be presumed to have been imported into Hong
        Kong. (Added 15 of 2007 s. 9)

(6B) In subsection (6A)(a)-

"manufacturer's code" (製造者代碼) has the meaning assigned to it by
section  2 (1) of the Prevention of Copyright Piracy Ordinance ( Cap 544);

"marked" (標上) has the meaning assigned to it by section 15(3) of the
Prevention of Copyright Piracy Ordinance ( Cap 544);

"optical disc" (光碟) has the meaning assigned to it by section 2(1) of the
Prevention of Copyright Piracy Ordinance ( Cap 544). (Added 15 of 2007 s. 9)

(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-

   (a)  section 35B(5) (imported copy not an “infringing copy” for
        purposes of section 35(3));

   (b)  section 40B(5) (accessible copies made for persons with a print
        disability);

   (c)  section 40C(7) (accessible copies made by specified bodies for persons
        with a print disability);

   (d)  section 40D(2) (intermediate copies possessed by specified bodies);

   (e)  section 40D(7) (intermediate copies dealt with by specified bodies);

   (f)  section 41A(7) (copies made for purposes of giving or receiving
        instruction);

   (g)  section 41(5) (copies made for purposes of instruction or
        examination);

   (h)  section 44(3) (recordings made by educational establishments for
        educational purposes);

   (i)  section 45(3) (reprographic copying by educational  establishments for
        purposes of instruction);

   (j)  section 46(4)(b) (copies made by librarian or archivist in reliance on
        false declaration);

   (k)  section 54A(3) (copies made for purposes of public administration);

   (l)  section 64(2) (further copies, adaptations, etc. of work in 
        electronic form retained on transfer of principal copy);

   (m)  section 72(2) (copies made for purpose of advertising artistic  work
        for sale); or

   (n)  section 77(4) (copies made for purposes of broadcast or cable 
        programme). (Replaced 15 of 2007 s. 9)

(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)

"manufacturer's code" (製造者代碼)

"marked" (標上)

"optical disc" (光碟)

"accessory work" (附屬作品)