Introduction
Xiaomi Box has recently been very popular in Hong Kong. By simply connecting the box to the television, user can, through unofficial channels, watch overseas television dramas, entertainment shows and even real-time broadcasts through its Android operating system receiving contents from the internet, and this magic box only costs a few hundred Hong Kong dollars. However, the users and sellers of the Xiaomi Box (and other television box with similar functions) should beware of possible copyright issues arising from the use.

Copyright Issues
Whilst certain contents of the Xiaomi Box are not officially available to the citizens in Hong Kong due to copyright issues, sellers now offer “jail-broken”, i.e. Xiaomi Box with security restriction removed, which allows users to install unapproved application enabling them to watch unofficial contents which possibly infringe third parties’ copyright, such as live broadcasts of the UEFA Champions League football games. Access to and/or distribution of such contents give rise to potential liability under the Copyright Ordinance (Cap 528) (“CO”).

According to the CO, copyright works include sound recordings, films, broadcasts and cable programmes whilst copyright in a work is infringed by a person who without the licence of the copyright owner does, or authorized another to do, any of the acts restricted by the copyright. Acts restricted by the copyright, including copying, making available copies of the work to the public; showing or playing the work in public; and broadcasting the work. The foregoing are examples of primary infringement. Secondary infringement would arise from, among others, the possessing and dealing with infringing copies for commercial purpose and supplying apparatus for infringing copyright.

TV dramas, entertainment shows and live broadcasts available via the Xiaomi Box are no doubt copyright works under the CO. Accordingly, it would amount to an infringement of copyright if one commits the act of making available to the public, showing or playing in the public and/or broadcasting such programmes without licence of the copyright owners.

Under the CO, the copyright owners and/or the exclusive licensees of the copyright works may commence civil actions against an infringer of copyright for reliefs including damages, injunctions and accounts for profits attributable to the infringement of copyright. Further, one may incur criminal liabilities by dealing with infringing works without the licence of the copyright owner in the course of trade, and/or to an extent which prejudicially affect the copyright owner. The maximum penalty is a fine HK$50,000 per infringing copy and imprisonment of 4 years.

The next question would then be, who would be held liable: the sellers, the end-users or the providers of illegal programmes?

Who would be liable?

Users for private purpose
Merely enjoying the shows via Xiaomi Box privately at home is unlikely to be considered dealing with the copyright work in a way that would attract criminal liabilities. However, copyright owners and/or exclusive licensees may still possibly commence civil proceedings against the end-users who watch the infringing copies of TV dramas or live football matches via the Xiaomi Box.

On a separate note, Xiaomi Boxes may utilise PRC IP addresses to enable access to  unlicensed programmes from Hong Kong. If so, users, knowing that they are not PRC internet users (and the said knowledge can be inferred from the obvious fact that the users are physically located in Hong Kong), might commit the offence of access to computer with dishonest intent under section 161 of the Crimes Ordinance (Cap 200). Therefore, the private users of Xiaomi Box are not necessarily liability free.

Users for commercial purpose
What if a karaoke store broadcasts the games of UEFA Champions League via the Xiaomi Box to its patrons without obtaining permission from the Hong Kong Cable Television Limited (“i-Cable”) which was granted the exclusive rights to broadcast the games in Hong Kong? Such acts amount to making available to the public, and/or possessing and dealing with for commercial purpose the copyrighted broadcast of the relevant football games. In such case, the copyright to broadcast exclusively granted to i-Cable is infringed and i-Cable and/or the party which owns the broadcasting rights may commence civil proceedings against the karaoke store for damages or accounts of profits. Besides, by possessing and/or exhibiting the infringing football games in the course of its business, the karaoke store may also incur criminal liabilities pursuant to the CO.

Of course, other restaurants or business premises, which shows any infringing copies of TV programmes to the public via the Xiaomi Box in the course of their business without obtaining permission from the copyright owners is likely to be in breach of the CO both civilly and criminally as well. Further, these commercial users should also be wary of the possible liability under the offence of access to computer with dishonest intent under section 161 of the Crimes Ordinance (Cap 200) as discussed above.

Sellers and programme providers
If the Xiaomi Box itself contains pre-installed copyright materials before selling, the sellers would incur criminally liability by selling the infringing copies of work contained therein. Besides, sellers, who assist to “jail-break” the Xiaomi Box so that unlicensed and copyright infringing contents would become available to users, are arguably supplying apparatus for infringing copyright.  In such case, these sellers might incur civil liability as well, in addition to potential criminal liability.

However, providers of the illegal programmes available via the Xiaomi Box are unlikely to be located in Hong Kong, which increased the difficulty of civil enforcement by right owners and criminal enforcement by the Customs.

Conclusion
As illustrated above, the Xiaomi Box can lead to multiple liabilities and serious legal consequences. Whilst the defence of lack of knowledge is available to avoid civil liability for secondary infringement and/or criminal liability under the CO, it would be rather hard for one to argue that he did not know or had no reason to believe that copyright subsisted in the TV programmes broadcasted through the Xiaomi Box or such are infringing copies. Especially for commercial users, they should think twice before offering infringing copies of broadcasts and/or TV programmes to the public through the Xiaomi Box.

For enquiries, please contact our Intellectual Property & Technology Department:

E: ip@onc.hk

T: (852) 2810 1212

W: www.onc.hk

F: (852) 2804 6311

19th Floor, Three Exchange Square, 8 Connaught Place, Central, Hong Kong

Important: The law and procedure on this subject are very specialised 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.