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Home > Intellectual Property Protection

Intellectual Property Protection

Intellectual Property Defined

Intellectual property is the collective name for a range of intangible property rights, including trademarks, patents, copyright, designs, plant varieties, and the layout design of integrated circuits.

In the digital environment, intellectual property such as copyright subsists in music, movies, television shows, and computer software. The copyright owner enjoys the exclusive rights to carry out acts restricted by the copyright, which means that the material cannot be copied or distributed without the copyright owner’s permission.

Intellectual Property Right ProtectionIntellectual property rights are protected under various ordinances, which include:

Copyright Ordinance

Prevention of Copyright Privacy Ordinance

Trade Marks Ordinance

Trade Descriptions Ordinance

Patents Ordinance

Registered Designs Ordinance

Plant Varieties Protection Ordinance

Lay-out Design (Topography) of Integrated Circuits Ordinance

Under the Copyright Ordinance, copyright owners can take legal action against anyone or any organization that copies or distributes the copyrighted work without their permission.

Intellectual Property Right Infringements

One of the more common instances in which intellectual property rights are infringed is through computer software piracy.

Under the Copyright Ordinance, simply using pirated computer software for private and domestic use is not an offense. However, the copyright owners can still claim damages against the infringers through civil proceedings. Penalties under the Copyright Ordinance, including fines and possible imprisonment, mainly relate to possessing or distributing pirated software for commercial purposes.

It is also important to note that a person will incur criminal liability if he distributes the pirated software to such an extent as to affect prejudicially the owner of the copyright, even though he may not be distributing the pirated software for commercial purposes.

Other works such as digital images, films and sound recordings that are found in interactive digital entertainment products are also protected under the Copyright Ordinance, and cannot be copied, distributed, sold, or used without permission from the copyright owner.

The Customs and Excise Department, which is responsible for taking legal action against intellectual property right infringement, monitors activities on the Internet round the clock, including copyright piracy involving the use of peer-to-peer file-sharing programs.

Under the Copyright Ordinance, a person commits an offense if he/she, without the license permission of the copyright owner, distributes an infringing copy of a copyrighted work to such an extent as to affect prejudicially the owner of the copyright even if it is not for the purpose of trade or business. The maximum penalty is a fine of $50,000 per infringing copy and imprisonment for four years.

In addition to the above, trademarks may be included in computer software. Under the Trade Marks Ordinance, the owner of a registered trademark has an exclusive right to use the mark on the goods or services for which the mark was registered. The owner can take legal action against anyone using his registered mark in relation to those goods or services without his consent. You should, therefore, bear in mind the potential liability for trademark infringement as well.

Respect for Intellectual Property Rights

One of the most common instances of intellectual property right infringement is through file sharing on peer-to-peer (P2P) networks. File sharing services such as Foxy and BitTorrent (BT) offer software for downloading that can link your computer to others in a network for direct sharing of any type of electronic file. Please note however that:

File-sharing software can open your computer to viruses and spyware, small programs that ‘watch’ what happens, sometimes recording keystrokes and sending information on passwords and credit card numbers to a third party.

Unless you are sharing music, programs, or videos of your own creation, you are probably violating someone else’s intellectual property rights. Parents can be held responsible for what their children have done on the family computer, even if they are not themselves engaged in illegal activity.

Securing musical works online is not necessarily a legal offense. In fact, many retail websites allow you to buy various types of music from many periods. You can also legally download sample tracks from the websites of many artists without the need to pay.

Enhancing Copyright Protection in the Digital environment

To ensure that our copyright law keeps pace with technological and overseas developments, the Government introduced the Copyright (Amendment) Bill 2014 (the Bill) into the Legislative Council on 18 June 2014. The Bill is now under the scrutiny of the Bills Committee of the Legislative Council. The key proposals of the Bill include:

introducing a technology-neutral exclusive right for copyright owners to communicate their works through any mode of electronic transmission

introducing corresponding criminal sanctions against unauthorized communication of copyright works to the public

expanding the scope of copyright exception under the existing law to balance copyright protection and reasonable uses of copyright work for the following purposes in appropriate circumstances:

(a) parody, satire, caricature, and pastiche

(b) commenting on the current events

(c) quotation

(d) temporary reproduction of copyright works by online service providers

(e) media shifting of sound recordings

(f) giving education instructions

establishing a statutory “safe harbor” for online service providers so that their liabilities for copyright infringement occurring on their service platforms could be limited under certain prescribed conditions

providing additional factors for the court to consider in assessing damages in civil cases in which infringement has been established.

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