On your website, there will likely be content that you have spent lots of creativity, tine, effort, and money in creating. Therefore, it is important that you are aware of the rights you have to guard against others copying off your website and how to enforce them under Hong Kong law.
What is copyright and how can it be infringed?
Copyright is the legal property right possessed by the owner of an original work. It is essentially the exclusive right to copy and reproduce the concerned work.
In detail, according to the Copyright Ordinance (Cap. 528), it is the right to do the following acts in Hong Kong:
- to copy the work;
- to issue, rent, or make available copies of the work to the public;
- to perform, show or play the work in public;
- to broadcast the work or include it in a cable programme service; and
- to make an adaptation of the work or do any of the above in relation to an adaptation.
A person, therefore, would be infringing your copyright in your work if they, without your permission, committed any of the acts listed above pertaining to your copyright work(s).
What can be protected by copyright?
The Copyright Ordinance (Cap. 528) provides copyright protection for “copyright works” made available on the internet, i.e. on your website. “Copyright works” consist of any of the following descriptions of work in which copyright exists:
- original literary, dramatic, musical or artistic works (e.g. books, computer software, musical compositions, plays, drawings, paintings, sculptures, etc.);
- sound recordings, films, broadcasts or cable programmes; and
- the typographical arrangement of published editions (i.e. of literary, dramatic, or musical works in addition to performers’ performances).
Limitations and exceptions
As with many things, the length for which copyright remains valid is finite. The general rule is that copyright lasts up until 50 years after the death of the creator of the work (with minor variations dependent on the type of work).
For more information on the variation in duration of different types of copyright works, please see: https://www.ip.gov.hk/en/duration-of-copyright.html
Additionally, the ordinance only protects “the work as a whole” or a “substantial part” of the work. However, the emphasis is on quality as opposed to quantity. For instance, copying a short but catchy musical phrase from a song is an infringement of copyright.
Furthermore, subject to conditions, there may be no copyright infringement in the following cases:
- fair dealing for research and private study;
- criticism, review and news reporting; and
- for use of works in library and school.
How do I obtain copyright?
In Hong Kong, under the Copyright Ordinance (Cap. 528), copyright is an automatic right which arises whenever an original piece of work is created in a material form. Thus, no registration, nor formal declaration on your website, is legally required in order to obtain copyright protection of its contents under the law of Hong Kong. “Original” is used to describe work in which was independently created and not copy or duplicated from other existing work. “Material form” means any form that can be written, embodied, stored and/or reproduced.
The creator of the work is usually the first owner of the copyright. For example, the writer of a book is the first owner of the copyright. However, there are a couple exceptions that may be of relevance to you:
- the employer is the first owner of an employee’s work unless there is alternative agreement between the parties; and
- the copyright ownership of commissioned works depends on the agreement between the author and the commissioner of the work.
Assignment of Copyright
However, if you are not the creator of the work and you do not satisfy the above two exceptions in relation to employer/employee or author/commissioner relationships, you only have copyright if there is an “assignment” of copyright whereby there is a transfer of copyright ownership from the copyright owner (the “assignor”) to you (the “assignee”). This agreement must be executed in writing, signed by or on behalf of the assignor.
Need an assignment of copyright? Take a look at our Copyright assignment agreement template and tailor it to your needs.
As a side note, if you have a licence, it is not the same thing as having copyright and no transfer of copyright ownership occurs. For more information on licensing, please see FAQ on “What is the difference between license and assignment of copyright?”
Moreover, through the applicability of various international copyright conventions in Hong Kong, i.e. the Berne Convention, Universal Copyright Convention, the Phonograms Convention, the World Trade Organisation – Agreement on Trade Related Aspects of Intellectual Property Rights, the World Intellectual Property Organization (“WIPO”) Copyright Treaty and the WIPO Performances and Phonograms Treaty, you should also have copyright protection in most other parts of the world.
How to stop or prevent others from copying off my website?
Copyright Notice
As a preventative measure, you may wish to incorporate a Copyright Notice page on your website. Copyright is an automatic right and there is no need to formally register for it, but it would nevertheless be helpful to have a clearly stated Copyright Notice page on your website to put off online visitors from copying your content. This would help you steer clear from costly and time-consuming legal issues and complications.
For more information on Copyright Notices and how to incorporate one, please see FAQ on “Which policies or legal pages should my e-commerce business website have?”
Legal Action
In the case where someone has copied content off your website for which you own the copyright of, you may first wish to contact the alleged copyright infringer. You can do this through issuing a Cease and Desist Letter to warn the copyright infringer that you will commence legal actions against them if they do not take down or remove your rightful copyright work(s). You may wish to use our Cease and desist letters / Letter before Action template and tailor it according to your needs.
If the copyright infringer further refuses to do so, as a last resort, you may take legal action against them to seek legal remedy. There are two ways in which your copyright works are protected by legal action:
- Civil Remedies
You, as the copyright owner, may take civil legal action against the alleged copyright infringer. You may seek for any and all relief which is necessary: e.g. an injunction to prevent further infringement, an order for the delivery up of the infringing items, disclosure of information about the supply and/or dealings of the infringing items, and an award of damages as well as costs, etc.
- Criminal Sanctions
In certain cases, the Customs and Excise Department would be responsible for handling criminal copyright infringement. The sanctions for criminal copyright infringement are fines and imprisonment.
Key takeaways
- Under Hong Kong law, you have automatic copyright for the copyright works on your website and no formal registration is required to obtain copyright of such works.
- To prevent any copyright infringement from occurring, you may wish to add a Copyright Notice page to your website.
- If you find that someone has copied off your website without your permission, you may first send them a Cease and Desist Letter and proceed to take legal action against them if the former does not yield satisfactory results.
Bibliography:
- Intellectual Property Department of the Government of the Hong Kong Special Administrative Region, ‘Copyright Protection in the Hong Kong SAR’: https://www.ipd.gov.hk/eng/pub_press/publications/hk.htm