B. Are there any "permitted acts" which may be exempt from the infringement of copyright?

B. Are there any "permitted acts" which may be exempt from the infringement of copyright?

Under the Copyright Ordinance, there are a number of permitted acts which will not constitute copyright infringement (see sections 37-88 of the Copyright Ordinance). These permitted acts cover a wide range of activities relating to education, library, museums and archives, public administration, and miscellaneous use of copyright works. The provisions defining the permitted acts are often detailed and specific. You are advised to read them carefully and note the conditions under which the relevant acts will not be regarded as copyright infringement. The information in this section only gives you some preliminary ideas for reference purposes and you must consult a lawyer if you have further queries.

Fair Dealing 

Among the permitted acts, the most important and general permitted acts are those of “fair dealing”. Under the Copyright Ordinance, fair dealing involves two elements:

• the dealing must be fair; and
• the purpose of the dealing must be confined to the prescribed purposes — research and private study (section 38 of the Copyright Ordinance); criticism, review, quotation, reporting and commenting on current events provided that the dealing is accompanied by a sufficient acknowledgment (section 39); parody, satire, caricature and pastiche (section 39A); education (section 41A), or public administration (section 54A).

Any act which is carried out for other purposes cannot be fair dealing, including acts carried out for private use or charity. This is in stark contrast to the defence of “fair use” under the United States copyright law, which is not confined to certain prescribed purposes and which thus serves as a general defence against accusations of copyright infringement.

In determining whether any dealing with a copyright work is fair, the court will consider the following four factors (sections 38(3), 39(4), 39A(2), 41A(2), and 54A(2)) of the Copyright Ordinance):

• the purpose and nature of the dealing;
• the nature of the work;
• the amount and substantiality of the portion dealt with in relation to the original work as a whole; and
• the effect of the dealing on the potential market for or value of the work.

Above all, the primary consideration for fair dealing 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 (section 37(3)).

Generally speaking, if a dealing involves copying part of a work which is necessary for one of the prescribed purposes and which is not a substitute for buying a copy of the work, the dealing will more likely be permitted as one of fair dealing. On the other hand, if the dealing is not for any of the prescribed purposes, or it involves copying an excessive part of a work, or it is in substance a substitute for buying a copy for the work, the dealing will less likely be regarded as one of fair dealing. The question is always one of degree and impression.

Education 

The exemption for fair dealing for the purposes of education (section 41A) expressly allows the school to store copies on their network for teaching purposes. Apart from the four factors for determining if a dealing is fair (see discussion under “Fair Dealing” above), storage of copyright works on the school’s network for teaching purposes is subject to two further conditions:

• there are technological measures adopted to restrict access to the copies to ensure that they are made available only to persons who need to use them for the purposes of teaching or learning or maintaining or managing the network; AND 
• the copies are not stored in the school’s network for a period longer than is necessary or, in any event, longer than 12 consecutive months.

In addition to fair dealing, the Copyright Ordinance also contains specific provisions permitting certain acts done for educational purposes. The more important permitted acts in this regard include the following:

• things done for the purposes of instruction or examination (section 41);
• performing, playing or showing of works in the course of school activities (section 43);
• recording, copying or communication of broadcasts and cable programmes by schools for educational purposes (section 44).

Other Permitted Acts 

There are other permitted acts under the Copyright Ordinance. The more important ones include the following:

• incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme (section 40);
• a person with a print disability possesses or otherwise has lawful access to a copy of the whole or part of a literary, dramatic, musical or artistic work (“master copy”), and the master copy is not accessible to the person because of the disability, the person, or somebody on behalf of the person, may make an accessible copy of the master copy for the person’s personal use (section 40B);
• copying, communication and playing or showing of sound recordings or films by librarians, curators or archivists (sections 46-53);
• acts done for proceedings of the Legislative Council or judicial proceedings (section 54);
• copying and communication of materials open to public inspection or on official registers (section 56);
• copying and making of an adaptation of a computer program by the lawful user (sections 60-61);
• transient and incidental copying technically required for the viewing or listening of a work on the Internet (section 65);
• temporary reproduction by online service providers (section 65A);
• public reading or recitation of extracts from published works (section 68);
• acts done in respect of artistic works on public display (section 71);
• performing, showing or playing of works for the purposes of a club, society, etc (section 76);
• copying sound recordings for private and domestic use (section 76A);
• recording for purposes of time-shifting (please refer to question 3);
• making of photographs of television broadcasts or cable programmes (section 80);
• free public showing or playing of broadcasts or cable programmes (section 81); and
• circumvention of technological measures for the following purposes (section 273D):
  • achieving interoperability of an independently created computer program;
  • testing, investigating or correcting a security flaw or vulnerability of the computer, computer system or computer network;
  • research into cryptography;
  • identifying or disabling the function of the measure or work in collecting or disseminating personally identifying information
  • to prevent access of minors to harmful materials on the Internet;
  • overcoming the regional coding, technology, device, component or means contained in the measure so as to gain access to the work;
  • copying by the librarian, curator or archivist of a specified library, museum or archive.

The provisions defining these permitted acts are detailed and specific. One is advised to read them carefully and to seek legal advice if necessary.