Clause

Organisation

Comment

Government Response

2(2)

Law Society

· Definition too wide. Suggests to define "person" as either a sole proprietor, partnership or a body corporate.

· Should be limited to manufacture in Hong Kong.

· We needed this language in the drafting in order to go behind the corporate veil that might protect unscrupulous pirates.

· Agreed. Clause 2(2) amended accordingly.

3(1)

Business Software Alliance

Licensing scheme should also cover the mastering process - manufacture of moulds, masters and stampers, etc

It will not be necessary to introduce more controls on the intermediary steps in the manufacturing process, as we are already licensing the mass production of optical discs.

3,4

Bar Association

· Registration system preferable to a licence scheme since it will be cheaper, simpler and less prone to abuse. No appeal mechanism will be needed for a registration system.

· The cumbersome nature of licences will hinder legitimate traders.

Will need a licensing system to enable the Commissioner to impose suitable conditions for better monitoring the manufacture of optical discs in Hong Kong.

3,4

Asian Patent Attorneys Association

Should define "manufacture" to include any input of data onto an optical disc as the Bill will not catch those who input pirated data onto blank discs.

The objective of the Bill is to prevent copyright piracy activities involving large-scale manufacturing of illicit CDs.

Clause

Organisation

Comment

Government Response

5

- Motion Picture Industry Association

- Hong Kong Optical Disc Manufacturing Association

- International Federation of the Phonographic Industry

- Motion Picture Association

Licence holder must be Hong Kong resident without criminal record. If equipment is owned by a limited company, licence holder should be on the board of directors.

· Cannot limit to Hong Kong residents because we have to comply with National Treatment requirements.

· Clause 26 already covers offences involving corporations and partnerships

5

Hong Kong Optical Disc Manufacturing Association

Government should include in the licensing conditions

· specific requirements for orders and client records be maintained

· recommend copyright verification procedures to be implemented

· These requirements will be endorsed on the licences.

· Not appropriate for Government intervention in industrial practices.

5

- Business Software Alliance

- International Intellectual Property Alliance

· Licensing conditions should explicitly prohibit licensee from making pirated products. Breach of such conditions should be a criminal offence.

· Applicants must provide details of manufacturing equipment used. Any upgrade, replacement or addition must be notified

· Sanctions for these infringing acts are already provided under the Copyright Ordinance (Cap. 528).

· These requirements will be stipulated by the Commissioner in the licensing conditions.

8

A group of optical disc manufacturers

Should not restrict free transfer of licence.

The Bill permits the transfer of licences but only with the approval of the Commissioner.

Clause

Organisation

Comment

Government Response

10

A group of optical disc manufacturers

Whether amendment of licence needed if manufacturer replaces failed parts or moulds ?

It will be stated on the licences whether certain parts or equipment are under control.

11,12

- Hong Kong Optical Discs Manufacturing Association

- Motion Picture Industry Association

- International Federation of the Phonographic Industry

- Motion Picture Association

Copyright verification not always straightforward, therefore Commissioner should revoke or refuse to renew a licence only in case of subsequent convictions under this Bill or the Copyright Ordinance.

We do not want to rule out heavier penalties even for first convictions which could be of a serious nature.

11

Business Software Alliance

Should refuse application if any employee of applicant has been convicted of a copyright offence in the course of employment.

It will be impracticable and unfair on the employees.

11

Law Society

Should add conditions where Commissioner should refuse grant or renewal of licence for previously adjudicated civil liabilities of the applicant.

Agreed. New sub-clause 11(1)(c) added.

15

Law Society

Should expressly states that forging of manufacturer’s codes is an offence.

Agreed. Penalty for this offence will be $500,000 fine and 2 years imprisonment (Clause 22).

15

- Motion Picture Industry Association

- Law Society

- Motion Picture Association

Importation or retailing of optical discs without manufacturer’s codes should also be an offence. Grace period of one year should be given to importers and retailers.

The Bill is designed to help eliminating and preventing copyright piracy in Hong Kong.

Clause

Organisation

Comment

Government Response

15

- Motion Picture Association

- Business Software Alliance

- International Federation of the Phonographic Industry

- Motion Picture Industry Association

- International Intellectual Property Alliance

Commissioner should have power to assign codes; suggests use of licence number or the IFPI’s "source identification codes".

The Bill should allow for more flexibility for manufacturer. Manufacturers can opt for other commercially available codes.

17

International Intellectual Property Alliance

Commissioner should have emergency authority to suspend a licensee’s facility immediately and seize pirate inventory.

These are complicated procedures which are already covered under the Copyright Ordinance.

17

Hong Kong Optical Disc Manufacturing Association

Wants clearer guidelines on the scope and depth of inspections, records and documents required. Necessary to distinguish "routine inspection" from "full inspections". Full inspections should be justified by reasonable grounds of suspicion.

Noted.

17, 18

Bar Association

Safeguards needed for the powerful enforcement provision, e.g. obtaining magistrate’s warrant or Commissioner’s permission before enter and search.

Adequate safeguards already provided under the common law legal framework.

Clause

Organisation

Comment

Government Response

20

- Business Software Alliance

- International Federation of the Phonographic Industry

- Motion Picture Industry Association

- Law Society

- Hong Kong Optical Disc Manufacturing Association

- International Intellectual Property Alliance

Equipment should also be liable to forfeiture.

Agreed. Clause 20 amended accordingly.

21

- Motion Picture Industry Association

- International Intellectual Property Alliance

- Business Software Alliance

- International Federation of the Phonographic Industry

Should double the penalties for second and subsequent offences.

Agreed. Clause 21 amended accordingly.

35

Bar Association

All registration particulars should be open to public inspection.

Not appropriate as this would infringe the privacy of personal data.