Copyright infringement and liability
Anyone without the consent of the copyright owner carries out any of the acts (to which the copyright owner has exclusive right under the CO) in respect of a “substantial part” of a work is said to have infringed the copyright of the work in question. An infringer can be liable even if he or she does not know or have reasons to believe that the work in question is an infringing copy. This type of infringement is known as “primary infringement”.
A person may commit a “secondary infringement” if, for instance, he imports into Hong Kong infringing copies of a work other than for his private and domestic use (say, for sale). The copyright owner can by civil proceedings claim against the infringer (for primary or secondary infringement) for relief such as damages, injunction or account of profits. In fact, not only was a secondary infringer liable in civil proceedings, he is also criminally liable under the CO.
Fair dealing of copyright work
Under the CO, fair dealing involves two elements:
Any act which is carried out for other purposes cannot be fair dealing, including acts carried out for private use or charity. In determining whether any dealing with a copyright work is fair, the court will have regard to the following four factors set out in the CO:
1. the purpose and nature of the dealing;
Yet, the primary consideration is that the dealing should not conflict with a normal exploitation of the work by the copyright owner and should not unreasonably prejudice the legitimate interests of the copyright owner.
Prima facie, you have infringed the copyright of the music video (which in fact consists of multiple copyrights over the lyrics, music, etc.) by making available the music video to the public. As said, this is still infringement even if you have no knowledge of whether the uploaded video is an infringing copy. Then, is your act a fair dealing? Arguably not. By uploading the video on your blog, you have reproduced substantially the entire music video and this cannot be regarded as fair in the circumstances. Further, the purpose of the dealing is unlikely to fall within any of the seven prescribed purposes.
Suppose in a different scenario where you have copied a small portion of an article of another online blogger on some current affairs and you provide your criticism on the portion. Based on the aforesaid, your act appears to fall within the prescribed purposes, i.e. review and criticism. It appears that you have not infringed the other blogger’s copyright, or have you?
Under the CO, for an act to be regarded as fair dealing for the purpose of criticism or review, it has to be accompanied by sufficient acknowledgment. As such, you must state the source and the authorship/copyright ownership of the article on which you offer your criticism/comment. Again, the reference to the article must be fair in the circumstances so as not to prejudice the legitimate interests of the author/copyright owner of that article. In any event, you should avoid simply copying the entire article and pasting it onto your blog – excerpts proportionate to the criticism purpose maybe reproduced but the reference to the original article should be done by way of a hyperlink to the original source.
The law and procedure on this subject are very specialized and complicated. This article is just a very general outline for reference and cannot be relied upon as legal advice in any individual case. If any advice or assistance is needed, please contact our solicitors.
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Published by ONC Lawyers © 2014