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Following is a question by the Hon Chan Chi-chuen and a reply by the Secretary for Commerce and Economic Development, Mr Gregory So, in the Legislative Council today (January 20):
Question:
Earlier on, the Chief Executive's Office (CE's Office) uploaded onto CE's Facebook page a video clip featuring CE himself and some other people singing together a karaoke song when attending a banquet, as well as photos of two types of buns and cakes of a cartoon character design, recently bought by CE when he visited the Hong Kong Brands and Products Expo. Some netizens have queried that the acts of uploading the video clip and photos may have constituted an infringement of copyright. It has been reported that CE's Office subsequently admitted that the prompt uploading of the video clip was undesirable, and indicated that it had made retrospective payment of royalties to and obtained the relevant licence from the Composers and Authors Society of Hong Kong (CASH). In this connection, will the Government inform this Council:
(1) given that some creators have pointed out that the uploading of video clips featuring acoustic covers of karaoke songs onto the Internet may involve six different copyrights, whether CE's Office has made payments of royalties in relation to the aforesaid video clip to copyright owners other than CASH; if it has, of the respective amounts of such payments; of the amount of royalties paid retrospectively by CE's Office to CASH;
(2) given that CE's Office paid royalties to and obtained the relevant licence from CASH only after it had uploaded the video clip, whether the authorities have assessed if that uploading act has incurred any criminal or civil liabilities for infringement of copyright; given that the Director of Intellectual Property has remarked that since CE is a public figure, the fair dealing exception for "commenting on current events" provided under the Copyright (Amendment) Bill 2014 (Amendment Bill) may be applicable to the uploading act in question, but CE's Facebook page is not a news web site and the video clip lasting one minute and nine seconds contains no contents commenting on any subject of current events, of the specific justifications for the Director's making the remark; given that some netizens have queried that even the Director has a problematic understanding of the Amendment Bill, of the measures adopted by the authorities to publicise the contents of the Amendment Bill so as to prevent members of the public from breaching the law inadvertently; and
(3) whether CE's Office had obtained authorisation from the copyright owner(s) of the relevant cartoon character before it uploaded the aforesaid photos of buns and cakes; if it had, of the details; if not, whether the authorities have assessed if that uploading act has incurred any criminal or civil liabilities for infringement of copyright?
Reply:
President,
I would first like to explain a few basic concepts in copyright.
Copyright is a private property right protected by law. Such a right is provided for in Articles 6 and 140 of the Basic Law at the constitutional level. Article 140 provides that the Government shall protect the achievements and the lawful rights and interests of authors in their literary and artistic creation. The Copyright Ordinance (Cap. 528, Laws of Hong Kong) contains detailed provisions on how to define the existence of copyright and the vesting of rights and interests.
Thus as a matter of law, copyright owners have the right to determine whether to agree to the use of their copyright works by others and the conditions of use.
It is common in real-life situations that users use others' copyright works in accordance with licensing terms and conditions. This is a common mode of economic activity which helps to achieve an important goal of the copyright system, namely, providing economic incentives to creators through the legal protection of copyright, which in turn encourages creativity and dissemination of knowledge.
In another common real-life scenario, a copyright owner may not have given any expressed consent or reached any licensing arrangement with a user before the latter's use of the former's copyright works. However, if a consensus between the copyright owner and the user could be objectively derived from the copyright owner's overall conduct, or from trade practice or custom, an implied licence or acquiescence to allow such use could be legally established. Whether the user has any legal liability would depend on whether the owner takes action against the user and the ruling of the court in any subsequent litigation.
Another important concept in copyright laws is copyright exceptions. Copyright protection is not absolute. Users can use others' copyright works in the absence of the owners' consent under reasonable circumstances. This is important for freedoms of speech and of creation, which are also protected constitutionally. The existing Copyright Ordinance contains more than 60 provisions on copyright exceptions; the Copyright (Amendment) Bill 2014 (the Bill) proposes additional copyright exceptions to the Ordinance.
My replies to the questions are as follows –
(1) In this case, the cover-version of the song involves two layers of copyright works –
1. The melody and lyrics of the song.
2. The musical recording of the background music.
The making of a video clip of the singing of the cover-version and the uploading of the video clip involve the following rights of the two layers of copyright works –
1. Right of reproduction. (The music industry may further divide it into right of reproduction and right of synchronisation, the latter of which refers to the right to merge the melody/lyrics and musical recording with the visuals of the video clip.)
2. Right of making available copies of copyright works on the Internet.
The respective rights in the melody and lyrics are managed by the Composers and Authors Society of Hong Kong (CASH) and covered by a licence. The Office of the Chief Executive (CE's Office) has obtained the licence, at a cost of $600 for three months from the date of the event.
The respective rights of the musical recording belong to the producer. If the musical recording came from a released record, the respective rights would be managed by the record label and covered by a licence. After the event the CE's Office has made earnest efforts to identify the owner, including liaising with the organiser and the production company of the event that evening, as well as a company that releases the relevant sound/video recording products. The CE's Office has eventually been informed that the musical recording of the background music did not belong to the latter company. As such, it has not been possible so far to identify the copyright owner to obtain a licence.
(2) The licence that the CE's Office has obtained from CASH is effective for three months from the date of the event. There is thus no question of legal liability for copyright infringement. As for the rights in the musical recording, the CE's Office would be pleased to pay the fee to obtain the necessary licence if the copyright owner could be identified.
On the day following the day on which the news was reported, without knowledge of the details of the case, the Director of Intellectual Property (DIP) made it clear at the beginning of her reply to media questions that what should first be considered was whether the consent of the copyright owners had been obtained. If that was the case, there would be no question of copyright infringement. When asked if there had been no licences, DIP said one might consider if the exceptions in the Copyright Ordinance were applicable. And legally speaking, the fair dealing exception for reporting current events under section 39(2) might be applicable. When subsequently asked by other reporters about this exception, DIP also explained its legal rationale. DIP did not refer to the fair dealing exception for commenting on current events proposed by the Bill. We note that some media reports on this issue, and the principal question above in this regard, are not accurate. There is thus no factual basis in the allegation that DIP did not have a proper understanding of the Bill.
Regarding the possible application of section 39(2) of the Copyright Ordinance, the legal considerations are whether the relevant act is reporting current events and whether the dealing of the relevant work is fair. The provision does not specify that this exception covers only reporters and news agencies and websites.
On publicity and education, the Government has been promoting the awareness of and respect for intellectual property in society. In respect of the copyright law, we agree that more publicity with particular emphasis in relation to common usage of copyright works on the Internet may be carried out so that the public could have a better understanding of the relationship between the copyright law and our daily life.
(3) We note that many merchants in the market are authorised by copyright owners to use copyright works (especially pictures/illustrations of cartoon characters) in their decorations to attract customers or produce food products containing such pictures/illustrations for sale. It is also common for customers to take photos of these decorations and food products and upload them to online social platforms. From the perspective of copyright law, this may constitute use of others’ copyright works. However, as mentioned above, so long as there is consent from the owners (including through licensing, implied licensing or acquiescence) or it falls under any of the exceptions in the Copyright Ordinance, such acts would not attract legal liability.
In reality, we are not aware of any legal action taken by copyright owners in respect of such acts. We believe that copyright owners are generally liberal with customers' online sharing of photos of food products containing pictures/illustrations of cartoon characters. Prohibition of such photo-taking by customers is uncommon. This may lend support to the existence of implied licensing or acquiescence from a legal perspective.
The CE's Office has not obtained authorisation for uploading such photos, in line with legal considerations and common practices.
Ends/Wednesday, January 20, 2016
Issued at HKT 16:10
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