Legislative Council Panel on Trade and Industry
Unauthorised Video Recording in Cinemas
Some pirated video discs of movies are recorded illicitly off cinema screens, although such versions are generally poor in quality. This note provides a summary of the latest deliberations on the issue.
2. Under the Copyright Ordinance, it is an offence to make for sale or hire, or to possess for the purposes of trade or business infringing copies of copyright works. However, in line with international trends, making or possessing such copies solely for private and domestic use is not liable to criminal prosecution.
3. On bringing charges against a suspected bootlegger, it would be necessary for the prosecution to provide reliable witness evidence that the accused was making a video recording of the movie being shown. In a darkened and usually crowded cinema, this might be difficult. It would also be necessary to persuade the court, beyond reasonable doubt, that the recording was made for sale or hire and not for private use. It is therefore unsure if our copyright laws can provide a sound basis for criminal prosecution.
4. Although civil litigation for the unauthorised copying of copyright works might in theory succeed, it is uncertain whether a court would impose sufficient sanction if the same defense of private use is offered by the respondent in alleged bootlegging cases. It would be difficult for the copyright owner to prove that he had suffered any significant loss of earnings if the alleged "infringer" had already paid for admission to the cinema, and that the unauthorised copy of the movie was made only for private and domestic consumption.
5. An alternative action is through contract law, where it could be construed as a breach of contract if the purchaser of the cinema ticket does certain acts expressly prohibited by cinema operators. This again requires civil litigation. However, this might not be a particularly effective remedy in the circumstances, because the cinema operators might find it difficult to identify the person on whom the writ should be served, and the costs involved in the litigation might not be fully recoverable even if the case was successful.
Some Preliminary Considerations
6. We have had initial exchanges with the movie industry and cinema operators on suggestions that additional legal tools might be warranted to combat this form of copyright piracy. We have considered, on a preliminary basis, certain additional legislative proposals as outlined below.
7. One proposal is to amend the law to make it an offence for the unauthorised recording or possession of a recording of a movie being shown in a cinema. Alternatively, it might be possible to create an offence for the unauthorised possession of video recording equipment in a cinema.
8. The advantage of both proposals is that it would be easier to establish that a person is in possession of unauthorised recording equipment or an unauthorised recording of the movie being shown, without the need for the prosecution to prove beyond reasonable doubt that the infringing copy was made for sale or hire.
9. Nonetheless, certain safeguards and defences would have to be provided under such options to deal with viewers who entered cinemas with recording equipment for innocent purposes or in good faith (e.g. tourists). As a matter of equity, cinema operators might be obliged in such cases to provide secure storage facilities for customers who wished to deposit their recording equipment. The operators might also have a legal duty to take reasonable care of the equipment under their temporary custody.
10. It should be noted that piracy might not be reduced in the end if bootleg activities were carried out offshore. We would also have to consider if it is more effective to concentrate existing resources for anti-piracy enforcement on the production and retail levels. Nonetheless, it has been suggested that anti-bootlegging legislation should be introduced to send a clear signal that unauthorised copying in cinemas is not tolerated. There is one view that whether the legislation may be enforced effectively should be a secondary concern. The practicability of any legislation to be introduced should be carefully considered, however, lest even the signalling effect would be lost.
11. The issue should also be considered in connection with that on legal liabilities for "end-users". (The Administration consulted this Panel on the subject at its September 1998 meeting. We intend to do so again at the February or March 1999 Panel meeting, taking into account views expressed at the motion debate on combating pirated optical discs of the Legislative Council on 16 December 1998.) Moreover, we may need to consider if there is a need for similar legislation against bootleg video recordings in theatrical performances and bootleg sound recordings in live concerts.
Follow Up Action
12. We intend to meet with representatives of the movie industry again shortly to have further exchanges on the issue.
13. Panel members are invited to comment on the points raised in this paper.
Trade and Industry Bureau