Introduction

Copyright material is everywhere.  In this digital age, sharing of information on social media platforms and online blogs becomes an integral part of our lives – we share our favourite songs on social media by clicking simply a “share” button; we write and quote any article we like on our online blogs.  As the sharing of information becomes easier, people become less vigilant when it comes to copyright of the information they share.  In this newsletter, we will discuss some common copyright issues in the age of internet and social media.

Copyright infringement and liability

In Hong Kong, protection of copyright matters is largely covered by the Copyright Ordinance (Cap. 528) (“CO”).  Copyright owners have the exclusive right to carry out certain acts in relation to their works, such as to distribute copies of their work to the public or to make adaption of a literary, dramatic or musical work.

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

There are a number of permitted acts which will not constitute copyright infringement under the CO, and the most common and general of all is “fair dealing”.   However, the scope of the acts permitted by “fair dealing” is not that extensive.

Under the CO, fair dealing involves two elements:

1.      the dealing must be fair; and

2.      the purpose of the dealing must be confined to seven prescribed purposes – research, private study, criticism, review/comment, news reporting, education, or public administration.

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;

2.      the nature of the work;

3.      the amount and substantiality of the portion dealt with in relation to the original work as a whole; and

4.      the effect of the dealing on the potential market for or value of the work.

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.

Some illustrations

Suppose you take a music video of your favourite musician and upload it to your online blog, is there any copyright infringement? If so, does your act fall within the ambit of fair dealing?

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.

Conclusion

As illustrated above, what appears to be a simple click of the “share” button on the internet may entail legal consequences. One should always be careful when sharing copyright materials.  While there are some permitted acts as exception to copyright infringement under the CO, those permitted acts are indeed rather restricted and may not cover many acts done in this digital age.