An Ordinance to provide for the suspension of the operation of certain amendments to the Copyright Ordinance effected by the Intellectual Property (Miscellaneous Amendments) Ordinance 2000. [22 June 2001] (Originally 13 of 2001) Cap 568 s 1 Short title This Ordinance may be cited as the Copyright (Suspension of Amendments) Ordinance 2001. Cap 568 s 2 Suspension of amendments (1) Subject to subsections (2) to (5), with effect on and from 1 April 2001, sections 118 and 120 of the Copyright Ordinance (Cap 528) shall be read as if the amendments effected by sections 2 to 7 and 9 to 18* of the Intellectual Property (Miscellaneous Amendments) Ordinance 2000 (64 of 2000) had not been enacted. (2) Subsection (1) does not apply in relation to an infringing copy of any of the following works- (a) a film commonly known as a movie; (b) a film commonly known as a television drama; or (c) a sound recording or film the whole or a predominant part of which consists of a musical work and any related literary work.(3) Subsection (1) does not apply in relation to an infringing copy of a computer program that is an infringing copy by virtue of section 35(2) of the Copyright Ordinance (Cap 528). (4) Subsection (1) does not apply in relation to an infringing copy of a computer program that- (a) is an infringing copy by virtue of section 35(3) of the Copyright Ordinance (Cap 528); and (b) was not lawfully made in the country, territory or area where it was made.(5) Subsection (1) does not apply in relation to an infringing copy of a computer program that- (a) is an infringing copy by virtue of section 35(3) of the Copyright Ordinance (Cap 528); and (b) was made in a country, territory or area where there is no law protecting copyright in the work or where the copyright in the work has expired.(6) For the purposes of subsections (3), (4) and (5), ''infringing copy'' (侵犯版权复制品) does not include an infringing copy- (a) that is in a printed form; or (b) that incorporates the whole or any part of a work not being a computer program itself and that is technically required for the viewing or listening of that work by a member of the public to whom a copy of the work is made available.(7) With effect on and from 1 April 2001, for the purposes of any offence under section 118 or 120 of the Copyright Ordinance (Cap 528) relating to an infringing copy of any of the works described in subsections (2), (3), (4) and (5)- (a) the reference to ''for the purpose of, in the course of, or in connection with, any trade or business'' in sections 31(1)(a) and (c), 32(1)(c), 95(1)(a) and (c), 96(5) and (6), 109(1)(a), 118(1)(d) and (e), 207(1)(b), 211(1)(b) and 228(1) of that Ordinance shall be read as a reference to ''for the purpose of, or in the course of, any trade or business''; (b) the reference to ''otherwise than for the purpose of, in the course of, or in connection with, any trade or business'' in sections 31(1)(d), 95(1)(d) and 118(1)(f) of that Ordinance shall be read as a reference to ''otherwise than for the purpose of, or in the course of, any trade or business''; and (c) the reference to ''for the purpose of, in the course of, or in connection with, any trade or business'' in sections 118(4), (5) and (8), 120(2) and 273(2)(a) of that Ordinance shall be read as a reference to ''for the purpose of, or in the course of, any trade or business".(8) Except as otherwise provided in subsection (6), the terms and expressions used in this section have the same meaning as in Part II of the Copyright Ordinance (Cap 528). _________________________________________________________________________________ Note: * Sections 2 to 7 and 9 to 18 of the Intellectual Property (Miscellaneous Amendments) Ordinance 2000 (64 of 2000) are reproduced as follows- "Copyright Ordinance 2. Secondary infringement: possessing or dealing with infringing copy Section 31 of the Copyright Ordinance (Cap 528) is amended- (a) by renumbering it as section 31(1); (b) in subsection (1)- (i) by repealing paragraph (a) and substituting- "(a) possesses for the purpose of, in the course of, or in connection with, any trade or business;";(ii) by repealing paragraph (c) and substituting- "(c) exhibits in public or distributes for the purpose of, in the course of, or in connection with, any trade or business; or";(iii) in paragraph (d), by repealing "otherwise than for the purpose of trade or business" and substituting "(otherwise than for the purpose of, in the course of, or in connection with, any trade or business)";(c) by adding- "(2) It is immaterial for the purpose of subsection (1)(a) and (c) whether or not the trade or business consists of dealing in infringing copies of copyright works.". 3. Secondary infringement: providing means for making infringing copies Section 32 is amended- (a) in subsection (1)(c), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (b) by adding- "(3) It is immaterial for the purpose of subsection (1)(c) whether or not the trade or business consists of dealing in articles specially designed or adapted for making copies of copyright works.". 4. Infringement of right by possessing or dealing with infringing article Section 95 is amended- (a) in subsection (1)- (i) by repealing paragraph (a) and substituting- "(a) possesses for the purpose of, in the course of, or in connection with, any trade or business;";(ii) by repealing paragraph (c) and substituting- "(c) exhibits in public or distributes for the purpose of, in the course of, or in connection with, any trade or business; or";(iii) in paragraph (d), by repealing "otherwise than for the purpose of trade or business" and substituting "(otherwise than for the purpose of, in the course of, or in connection with, any trade or business)";(b) by adding- "(1A) It is immaterial for the purpose of subsection (1)(a) and (c) whether or not the trade or business consists of dealing in infringing articles.". 5. False attribution of work Section 96 is amended- (a) in subsections (5) and (6), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (b) by adding- "(6A) It is immaterial for the purpose of subsections (5) and (6) whether or not the trade or business consists of dealing in- (a) works or copies of works in or on which there are false attributions; or (b) altered works or copies of altered works.". 6. Order for delivery up Section 109 is amended- (a) in subsection (1)(a), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (b) by adding- "(1A) It is immaterial for the purpose of subsection (1)(a) whether or not the trade or business consists of dealing in infringing copies of copyright works.". 7. Criminal liability for making or dealing with infringing articles, etc. Section 118 is amended- (a) in subsection (1)- (i) in paragraphs (d) and (e), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (ii) in paragraph (f), by repealing "otherwise than for the purpose of trade or business" and substituting "(otherwise than for the purpose of, in the course of, or in connection with, any trade or business)";(b) in subsections (4), (5) and (8), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (c) by adding- "(8A) It is immaterial for the purpose of subsections (1)(d) and (e), (4) and (8) whether or not the trade or business consists of dealing in infringing copies of copyright works.". 9. Making infringing copies outside Hong Kong, etc. Section 120 is amended- (a) in subsection (2), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (b) by adding- "(2A) It is immaterial for the purpose of subsection (2) whether or not the trade or business consists of dealing in infringing copies of copyright works.". 10. Minor definitions Section 198 is amended- (a) by renumbering it as section 198(1); (b) by adding- "(2) In sections 31(2), 32(3), 95(1A), 96(6A), 109(1A), 118(8A) and 120(2A), "dealing in" (经营) includes buying, selling, letting for hire, importing, exporting and distributing.". 11. Index of defined expressions Section 199 is amended- (a) by repealing "198" wherever it appears and substituting "198(1)"; (b) by adding- "dealing in section 198(2)". 12. Infringement of performer's rights by importing, exporting, possessing or dealing with infringing fixation Section 207 is amended- (a) by repealing subsection (1)(b) and substituting- "(b) for the purpose of, in the course of, or in connection with, any trade or business- (i) possesses; (ii) makes available to the public; (iii) sells or lets for hire; (iv) offers or exposes for sale or hire; or (v) distributes,";(b) by adding- "(1A) It is immaterial for the purpose of subsection (1)(b) whether or not the trade or business consists of dealing in infringing fixations.". 13. Infringement of fixation rights by importing, exporting, possessing or dealing with infringing fixation Section 211 is amended- (a) by repealing subsection (1)(b) and substituting- "(b) for the purpose of, in the course of, or in connection with, any trade or business- (i) possesses; (ii) makes available to the public; (iii) sells or lets for hire; (iv) offers or exposes for sale or hire; or (v) distributes,";(b) by adding- "(1A) It is immaterial for the purpose of subsection (1)(b) whether or not the trade or business consists of dealing in infringing fixations.". 14. Order for delivery up Section 228 is amended- (a) in subsection (1), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (b) by adding- "(1A) It is immaterial for the purpose of subsection (1) whether or not the trade or business consists of dealing in infringing fixations.". 15. Expressions having same meaning as in copyright provisions Section 238 is amended by adding- "(1A) In sections 207(1A), 211(1A) and 228(1A), "dealing in" (经营) includes buying, selling, letting for hire, importing, exporting and distributing.". 16. Index of defined expressions Section 239 is amended by adding- (a) by repealing "198" opposite the expression "business" and substituting "198(1)"; (b) by adding- "dealing in section 238(1A)". 17. Devices designed to circumvent copy-protection Section 273 is amended- (a) in subsection (2)(a), by repealing "for the purpose of trade or business" and substituting "for the purpose of, in the course of, or in connection with, any trade or business"; (b) by adding- "(6) It is immaterial for the purpose of subsection (2)(a) whether or not the trade or business consists of dealing in devices or means specifically designed or adapted to circumvent forms of copy-protection. (7) In subsection (6), "dealing in" (经营) includes buying, selling, letting for hire, importing, exporting and distributing.". 18. Copyright: Transitional provisions and savings Schedule 2 is amended, in paragraph 40, by repealing "198" and substituting "198(1)"." Cap 568 s 3 Lifting of suspension (1) Section 2 shall cease to have effect on 31 July 2006. (Amended L.N. 130 of 2002; L.N. 176 of 2003; L.N. 52 of 2004) (2) The Secretary for Commerce, Industry and Technology may, by notice published in the Gazette before the date specified in subsection (1), amend that subsection by substituting for that date such date as is specified in the notice. (Amended L.N. 106 of 2002) (3) A notice under subsection (2) shall be subject to the approval of the Legislative Council. (4) It is hereby declared that a notice under subsection (2) is subsidiary legislation.
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