Hogan Lovells

Hogan Lovells' LimeGreen IP

The site will give you an overview of Intellectual Property law and related procedures, and how these may differ from country to country.

Copyrights - Copyright protection - Hong Kong

Overview

In this section we give a brief overview of Hong Kong copyright law including an outline of the works which are protectable and the exclusive rights given to a copyright owner. Under Hong Kong law authors and creators of certain works will own copyright in those works and may also have 'moral rights' in those works, for example, the right to object to derogatory treatment of the work.

One important difference between Hong Kong and most other jurisdictions is that in Hong Kong copyright can often be used to prevent the copying of industrially produced three-dimensional articles, where such articles were made from original design drawings, on the basis that the infringer, by copying the article, has indirectly copied the drawings from which the article was made.

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-What are the works that can be protected?

Under section 2 of the Copyright Ordinance, Cap 528 ("CO"), the following works are protected by Hong Kong copyright: 

  • Original literary, dramatic, musical or artistic works;
  • Sound recordings, films, broadcasts or cable programs; and
  • The typographical arrangement of published editions. 

'Literary' works include any works written, spoken or sung (apart from musical or dramatic works) and include computer programs and databases.

Copyright does not subsist in a literary, dramatic, musical or artistic work until the work is recorded (in writing or otherwise).

The CO also gives certain exclusive rights to performers in their performances. These include the right to make a recording of the performance, or to broadcast or make available a live broadcast of the performance, or to make and/or issue to the public a copy of a recording or a broadcast of the performance.

Literary, dramatic, musical and artistic works are only protected to the extent that they are 'original'. This means that the work must not have been slavishly copied from another work and a sufficient amount of 'skill, judgment and labour' must have been expended by the author. Originality is not defined in the CO but its meaning has been developed by case-law.


-Will the work be protected in other countries?

Copyright protection is governed by national law and, as such, a work will be covered by different national copyright in different territories. Each national copyright will be subject to the copyright law of that country and the requirements for protection, as well as the term and scope of the copyright, defences to infringement and remedies will depend on the law of the country concerned.

Hong Kong has an open qualification system and generally works will qualify for protection if the author is domiciled or resident in Hong Kong or elsewhere, or if the work is published in Hong Kong or elsewhere. This effectively means that almost all works referred to in section 2 of the CO, regardless of who created them or where they were created, will qualify for Hong Kong copyright protection. The following international treaties apply to Hong Kong:

  •  Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 24 July 1971) 
  • Universal Copyright Convention (as revised at Paris on 24 July 1971) 
  • the Geneva Convention for the Protection of Producers of Phonograms Against Unauthorised Duplication of Their Phonograms; 
  • World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights - TRIPS (1994) 
  • World Intellectual Property Organization Copyright Treaty (1996) 
  • WIPO Performances and Phonograms Treaty (1996).

-What are the requirements for copyright protection?

Accrual

A copyright work is protected on its creation. There is no requirement to register copyright works under Hong Kong law in order to gain protection.

Term

The term of protection under the CO depends on the type of work, when it was created and the rights concerned. The general rule for literary, dramatic, musical and artistic works is that the work is protected for 50 years from the death of the author or from the first publication of the protected work in the case of anonymous works.

A shorter period of protection may apply to artistic works (usually drawings) which have been used to make, by an industrial process, an article which is a copy of the artistic work.

The CO also provides for specific rules on the term of protection for entrepreneurial copyright works, such as sound recordings and broadcasts, which are protected, as a general principle, for 50 years from creation or first release. Special rules also apply to calculating the period of copyright protection for films and copyright-related rights, such as moral rights and the rights of performers.


-What are the author's rights under the national law?

The CO provides authors with copyright and moral rights in their works.

Under the CO the owner of the copyright in a work has the exclusive right to copy the work, issue copies to the public, rent or make the work available to the public (including over the Internet), perform, show or play the work in public, broadcast the work or make it available in a cable program service and make an adaptation.

The author of a copyright work also has the following moral rights: 

  • the right to be identified as the author or director; 
  • the right to object to derogatory treatment of a work; and 
  • the right to object to false attribution. 

On the death of the author, the rights shall belong (until the expiry of the copyright, or in the case of the right to object to false attribution, for 20 years from the death of the author) to the person designated by the author in his last will and testament.

The copyright owner (and an exclusive licensee) has the right to take legal action against persons who infringe his copyright. The CO provides, amongst other things, the following remedies: 

  • an injunction 
  • compensatory damages or an account of profits and the possibility of additional damages, for example for flagrant infringement 
  • an order for delivery up of the infringing copies or any articles designed for making infringing copies 
  • the right to seize and detain infringing copies which are available for sale or hire

-How do you assign copyrights / author rights?

The first owner of Hong Kong copyright is the author (the person who created the work) except where a work is made by an employee in the course of his employment, in which case his employer will be the first owner. Specific rules apply to sound recordings, films and broadcasts.

Copyright can be transferred by assignment, by testamentary disposition or by operation of law. An assignment is not effective unless it is in writing signed by or on behalf of the assignor. The transmission can be partial so as to apply to some but not all of the things the copyright owner has the exclusive right to do, or to a part but not the whole of the period of copyright protection. An agreement to assign future copyright may assign such copyright when it comes into existence.

Moral rights are not assignable but can be waived.