Copyright Ingringement

In a case the Hong Kong’s Court of Final Appeal established that illegally downloading music or movie and distributing a copy of the copyrighted work without the permission of the copyright owner creates copyright infringement. The court also held that such an attempt of file-sharing with others is also a copyright violation and affects prejudicially the owner of the copyright contrary to sections 118 (1)(f) and 119(1) of the Copyright Ordinance, Cap.528 of the Laws of Hong Kong.

In this case, the Court of Appeal’s judgement focuses on two issues, namely, what constitutes a “copy” capable of distribution and what conduct constitutes “distribution”. The three sections of the Copyright Law ascertain that “copy” refers to copying a work, means reproducing the work in any material form which includes storing the work in any medium by electronic means while “distribution” in its ordinary meaning, is clearly capable of describing a process in which the distributor first takes necessary steps to make the item available and the recipient then takes steps of his own to obtain it.

On the Defence’s arguments that the Copyright Ordinance treats copies as physical objects capable of being dealt with as such because it envisages copies being bought, sold, exported, imported and so forth, the Court of Final Appeal rejected those arguments by stating that, just because one particular form of transferring an electronic copy might require the physical delivery of a storage device, not all forms of dealing and in particular distribution, of such copies require similar physical handling, to the exclusion of delivery via the internet. Technological advances are constantly being made with a view to eliminating the need for such physical deliveries. The Court also ruled that there was no legal reason to confine the distribution of copies to cases involving delivery by physical means. “Distribution” was not defined in the Ordinance and should be attributed its ordinary meaning. The court finally dismissed the appeal of the defendant and sent him to serve three-months custodian sentence clarifying the laws of Hong Kong regarding copyright infringement.

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Copyright Infringement - Hongkong