LegCo Paper No. CB(1)1239/96-97
(These minutes have been
seen by the Administration)
Bills Committee on Copyright Bill
Minutes of meeting held
on Thursday, 20 March 1997, at 2:30 pm
in Conference Room B of the Legislative Council Building
Members present :
Hon Mrs Selina CHOW, OBE, JP (Chairman)
Hon Ambrose LAU Hon-chuen, JP (Deputy Chairman)
Dr Hon HUANG Chen-ya, MBE
Hon Howard YOUNG, JP
Hon CHAN Kam-lam
Dr Hon LAW Cheung-kwok
Hon SIN Chung-kai
Members absent :
Hon Ronald ARCULLI, OBE, JP
Hon Mrs Miriam LAU Kin-yee, OBE, JP
Hon Fred LI Wah-ming
Hon Henry TANG Ying-yen, JP
Hon James TO Kun-sun
Dr Hon Philip WONG Yu-hong
Hon Andrew CHENG Kar-foo
Hon Margaret NG
Public officers attending :
- Mr Augustine CHENG
- Deputy Secretary for Trade and Industry
- Mr Stephen SELBY
- Director of Intellectual Property
- Mr Peter K F CHEUNG
- Deputy Director of Intellectual Property
- Mr Patrick NIP
- Principal Assistant Secretary for Trade and Industry
- Mrs Spring FUNG
- Deputy Principal Crown Counsel
- Mr Johann WONG
- Assistant Secretary for Trade and Industry
Clerk in attendance:
- Miss Odelia LEUNG
- Chief Assistant Secretary (1)1
Staff in attendance :
- Ms Kitty CHENG
- Assistant Legal Adviser 2
- Ms Sarah YUEN
- Senior Assistant Secretary (1)1
I Election of Chairman and Deputy Chairman
Hon Mrs Selina CHOW and Hon Ambrose LAU Hon-chuen were elected Chairman and Deputy Chairman of the Bills Committee respectively.
Briefing by the Administration
2. The Deputy Secretary for Trade and Industry (DS/T&I) briefed members on the Copyright Bill (the Bill). Members noted that the Bill was intended to achieve the following purposes -
The existing copyright law in Hong Kong was primarily governed by the 1956 Copyright Act of the United Kingdom (the 1956 Act) as amended and extended to Hong Kong. Article 140 of the Basic Law required the Hong Kong Special Administrative Region to have its own law to protect the achievements, and the lawful rights and interests, of authors in their literary and artistic creation. Hong Kong therefore had to establish before 1 July 1997 an independent copyright regime that would suit local circumstances.
In devising Hong Kongs own copyright regime, the Administration had endeavoured to ensure that the Bill was modern and could cater for technological advances. The Bill thus included proposals for protection of the interests of right owners in the digital environment. Following a conference organised by the World Intellectual Property Organisation (WIPO) in Geneva in December 1996, a general consensus had been reached on this matter. Hong Kong had accordingly included in the Bill provisions to reflect this consensus, which embodied the guiding principle that the rights of copyright owners had to be suitably balanced against the reasonable expectations of all users of the Internet and Hong Kongs Internet service providers. Hong Kongs quick response to the WIPO Geneva Treaties was appreciated by Hong Kongs overseas intellectual property contacts.
(c) Performance of international obligations
The Administration had ensured that the proposed copyright regime would meet the standards stipulated under the international intellectual property treaties and conventions which would continue to be applied to Hong Kong after 30 June 1997, namely the Berne Convention, the Universal Copyright Convention and the Phonograms Convention. In addition, as a separate member of the World Trade Organisation (WTO) at present and after transition, Hong Kong would also need to comply with WTOs Agreement on Trade-Related Aspects of Intellectual Property Rights (the TRIPS Agreement). The Intellectual Property (World Trade Organisation Amendments) Ordinance (Ordinance No. 11 of 1996) was passed on 24 April 1996 to meet Hong Kongs obligations under the TRIPS Agreement, followed by the Bill to take care of details regarding copyright protection. Recent media reports that some provisions in the Bill did not comply with the TRIPS Agreement were ill-founded and the Administration had already cleared up the misunderstanding. At members request, the Administration would provide a copy of the relevant media reports and its response to the Bills Committee.
(d) Balance of interests
To prevent abuse of copyright which might hinder the freedom of expression, access to information, educational activities, cultural development, public administration and other uses of copyright material for public interest, the Administration had ensured that there were provisions in the Bill for permitted acts. These included general permitted acts for fair dealing for research and private study; for criticism, review and news reporting; and for the incidental inclusion of copyright material in artistic works, sound recordings, films, broadcasts and cable programmes. There were also permitted acts for specific purposes which were in the public interest. For example, copying and reproduction of copyright works and material were permitted, under specified circumstances, for purposes relating to education, library and archives, and public administration, etc.
3. DS/T&I said that the Law Reform Commission (LRC) had conducted extensive public consultation before finalising and publishing its Report on Reform of the Law Relating to Copyright in January 1994. A draft Copyright Bill, prepared on the basis of the LRC recommendations, was issued in early November 1996 to about 100 organisations for comments, including copyright owners and users in the relevant sectors as well as those in the professional and academic fields. Seventy-eight submissions had been received and comments had as far as possible been reflected in the Copyright Bill. Two public seminars were also held in November 1996 to explain and clarify the provisions in the draft Bill. More than 100 participants from 56 organisations attended the seminars.
4. DS/T&I emphasised that to avoid a legal vacuum in an extremely important area of intellectual property protection in Hong Kong, the Administration hoped that members could complete scrutiny of the Bill in early May to allow time for completion of the negative approval procedures for its subsidiary legislation before 1 July 1997.
Comparison with the Chinese law
5. In response to a members question on the comparison of the Bill and the Chinese copyright law, the Director of Intellectual Property (D of IP) said that both laws aimed at complying with international standards. However, owing to differences in the legal systems, the two laws had taken different routes to achieve the same purpose. At members request, the Administration would provide a comparison of the similarities and differences between the Chinese copyright law and the Bill.
6. Recognising that parallel importation was the most contentious issue, members agreed to consider this first. They opined that the issue should be considered from the following perspectives -
- Whether parallel importation should be sanctioned;
- The right of copyright owners/exclusive licensees to take civil actions against parallel importers;
- The availability of criminal remedies for parallel importation and their enforcement; and
- The need to protect local creative industries.
7. To facilitate discussions, members requested the Administration to provide a detailed comparison of copyright laws on parallel importation in the United States, the European Union, Australia, Singapore and Hong Kong, which should include points (a) to (d) in para 6 above.
8. In response, DS/T&I and D of IP explained the difficulties in preparing the comparison. Firstly, many countries did not have a clear position regarding parallel imports. Secondly, it was necessary to consult local practitioners in the above countries on interpretation and enforcement of their copyright laws. Nonetheless, they assured members that the Administration had started examining the application of copyright laws in these countries and would provide the comparison as soon as practicable.
9. In recognition of karaoke operators concerns about royalty payments expressed during the scrutiny of the Intellectual Property (World Trade Organisation Amendments) Ordinance , a member opined that the operators should be invited to express their views on the Bill. In response, DS/T&I pointed out that their concerns had already been addressed in Division VIII of the Bill, which dealt with licensing schemes and licensing bodies.
10. Given the complexity of the subject of protection of the digital environment, a member expressed doubt on whether the Bills Committee could tackle this issue within the limited time available. In response, DS/T&I pointed out that only two clauses, clauses 26 and 65 dealt specifically with Internet. Since the wording of these clauses closely followed that of the Geneva Treaties, these two clauses should not give rise to any dispute.
III The way forward
11. The Chairman invited views from members on the way forward. Since divergent views had been expressed on the regulation of parallel imports, members agreed to meet deputations as soon as practicable. The Bills Committee agreed to issue a press release and to send letters to invite views from individuals/organisations which had made comments on the draft Bill during the consultation exercise. To speed up scrutiny of the Bill, members also agreed that all deputations should be required to send in written submissions prior to attending the Bills Committee meetings. The deadline for receiving submissions would be 20 April 1997.
12. The next meeting of the Bills Committee was scheduled for 26 March 1997 at 12:00 noon.
13. The meeting ended at 3:30 pm.
Legislative Council Secretariat
9 April 1997
Last Updated on 24 Apr, 1997