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Business Software Alliance (BSA)

The Business Software Alliance is an international organization representing leading software and e-commerce developers in 65 countries around the world. Established in 1988, BSA has offices in the United States, Europe, and Asia.

As the "voice" of the software industry, BSA helps governments and consumers understand how software strengthens the economy, worker productivity and global development; and how its further expansion hinges on the successful fight against software piracy and Internet theft.

Their efforts include educating computer users about software copyrights; advocating public policy that fosters innovation and expands trade opportunities; and fighting software piracy.
Source: www.bsa.org/hongkong/about

Reference Web-site: http://www.bsa.org/hongkong

Control of Anti-circumvention Device

It attracts civil liability to a person who deals with anti-circumvention devices or publishes information enabling such circumvention. The electronic circumvention mechanism includes encryption or digital watermark as happens in DVD and musical recordings of Secure Digital Music Initiative (SDMI). In Hong Kong, we have the example of Cable TV decoder. Such Cable TV decorder can be bought in China at just around $300. No authorisation is given by Cable Television Limited, the sole broadcaster of Cable TV in Hong Kong, to connect the decorder to the programme cable. The connection violates the right of 'making available the works to the public'. 'Making available' includes making available through wire or wireless means. Cable TV is transmitted through wire means. The installation of the decorder and the receiving of the programme for watching is an infringement of Cable TV's rights.

Section 273 provides that the person issuing or making available the copies or the unfixed performance to the public has the same rights and remedies (as a copyright owner has in respect of an infringement of copyright) against a person who, knowing or having reason to believe that it will be used to make infringing copies or infringing fixations:

(a) makes, imports, exports, sells or lets for hire, offers or exposes for sale or hire, advertises for sale or hire, or possesses for the purpose of, in the course of, or in connection with, any trade or business, any device or means specifically designed or adapted to circumvent the form of copy-protection employed; or
(b) publishes information intended to enable or assist persons to circumvent that form of copy-protection.

Based on the above provisions, cable programme service providers like Cable TV is entitled to take action against the home users of the unauthorised decorders as well as against the supplier of the decorder, which is known to be an anti-circumvention device. To enforce the rights, the cable programme service provider will encounter great difficulties as the infringement takes place inside private residence. It is not easy to detect and have evidence gathered. Therefore, Cable TV has recently announced to have the decorder replaced. The replacement cost amounts to billions of dollars.

Rights Management Information

It is very common to find that copyright works bear copyright information such as author, and use terms and conditions. These are rights management information.

Accoridng to s.274 of the Copyright Ordinance, 'rights management information' means-

(a) information which identifies the work, the author of the work, the owner of any right in the work, the performer, or the performance of the performer;

(b) information about the terms and conditions of use of the work, the person having fixation rights in relation to the performance, or the performance; or

(c) any numbers or codes that represent such information, when any of these items of information is attached to a copy of a work or a fixed performance or appears in connection with the making available of a work or a fixed performance to the public.

The law gives the provider of the rights management information legal remedies against persons who remove or alters such information without authority. Under the same section, he is entitled to the following rights and remedies as a copyright owner has in copyright infringement, namely, against the person who:

(a) removes or alters any electronic rights management information provided by him without his authority; or
(b) issues or makes available to the public, sells or lets for hire, imports into or exports from Hong Kong, broadcasts or includes in a cable programme service, without his authority, works or copies of works, performances, fixations of performances to which the electronic rights management information is attached knowing that the electronic rights management information has been removed or altered without his authority.

Works Having No Copyright

Copyright works are well-defined in the Copyright Ordinance, works do not fall into the definition are not qualified for protection. In some cases, a title is registrable as a trade mark thereby giving protection under the Trade Mark Ordinance. The following are not protected by copyright:

1. Unfixed works e.g. speeches. But it should be noted that live performance enjoys protection under the head of Performer's Rights although these are not copyrights in nature.

2. Titles (e.g. news headlines), names (Alan Tam), short phrases and slogans (Life is Full of Surprises)

3. familiar designs or symbols e.g. figure point symbol, cross-bone

4. Ideas (e.g. fruits are good for health), methods, systems, processes, concepts, principles, discoveries or devices.

Parallel Import

The present Copyright Ordinance outlaws parallel import ( ) of a copyright work. Goods of parallel import for the purpose of the Copyright Ordinance means a copy of that work which was lawfully manufactured in the country or territory where it was made. Such works, despite being authentic, are defined by the Ordinance as 'infringing copy'. According to the Ordinance, a copy of copyright work imported into Hong Kong by way of parallel import and which, if made in Hong Kong, would have either infringed the copyright in that work, or breached an exclusive licence agreement relating to the software, is regarded as an infringing copy.

Whether the goods so imported are 'infringing copy' has a time element, namely it only been published for 18 months or less.

Henceforth, if the works are so imported into Hong Kong and are possessed for the purpose of, in connection with or in the course of trade or business, it is a criminal offence. The penalty is just like possessing a 'pirated copy' of a work. The maximum penalty is $50,000 per infringing copy (which is in fact a copy so imported by parallel import) and 4 years imprisonment.

Goods having been published for more than 18 months will not attract criminal liability. It will nevertheless potentially attract civil liability under the trade mark laws.

In May, 2001, the Industry and Commerce Bureau has released for consultation a proposal to remove the criminal and civil liability elements on possession etc of computer programs imported into Hong Kong by parallel import. The proposal originated from the public's outcry of insufficient competitiveness of the market in computer programs. The consultation closes on 15 June 2001.

Who is a 'lawful user'?

Lawful user of a computer program if he has a contractual right to use the program.

The Ordinance allows 2 exceptions specially for computer program

1. Backup: A lawful user of a copy of a computer program may make a back-up copy of the program without infringing the copyright in the program if it is necessary for him to have the back-up copy for the purposes of his lawful use.

2. Decompilation of correction of errors in the program: A lawful user of a copy of a computer program may copy or adapt the program without infringing the copyright in the program if the copying or adapting is necessary for his lawful use. A lawful user of a copy of a computer program may, in particular, if it is necessary for the lawful use of the program, copy the program or adapt it for the purpose of correcting errors in it.

Computer Program

Computer programs are protected on the same basis as literary works. They include the source code and the object code.

Translation of a program into or between computer languages and codes corresponds to "adapting" a work. This is commonly called 'reverse engineering'.

Civil Liability

Copyright infringement is a cause of action in civil action. The relief available to copyright owner is: injunction (Anton Piller order), damages, account of profits, discovery order (delivery up of articles, disclosure under oath).

Criminal Liability

A person commits an offence if he, without the licence of the copyright owner:

1 makes for sale or hire;
2 imports into Hong Kong otherwise than for his private and domestic use;
3 exports from Hong Kong otherwise than for his private and domestic use;
4 possesses for the purpose of, in the course of, or in connection with, any trade or business with a view to committing any act infringing the copyright;
5 for the purpose of, in the course of, or in connection with, any trade or business:(i) sells or lets for hire;(ii) offers or exposes for sale or hire;(iii) exhibits in public; or(iv) distributes; or(v) distributes (otherwise than for the purpose of, in the course of, or in connection with, any trade or business) to such an extent as to affect prejudicially the owner of the copyright, an infringing copy of a copyright work.

'Trade or business' does not have to involve dealing with infringing copies for profit or reward. Keeping or using an infringing copy of computer program in a company whose employees make use of it for doing business, for example typing of a business letter, a contract, a quotation or making a drawing is sufficient for the offence. Trade includes profession. Therefore, professionals like lawyers, doctors will be caught by the criminal sanction. Teachers and social workers are alike.

The above provisions apply to dealing of computer program. It is punishable by a fine of up to $50,000 per copy and 4 years of imprisonment. In case of moulds, $500,000 and 8 years of infringement.

The criminal provisions have relieved the prosecution from the need of proving 'knowledge' on the part of the accused. If an accused wishes to defend the charge, he has to prove to the Court that he does not have the knowledge or has no reason to know that the article is an infringing copy.

The Customs & Excise Department is charged with the duty to receive complaints from the public in respect of copyright piracy, investigate the same.