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 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:

1. the dealing must be fair; and
2. the purpose of the dealing must be confined to five prescribed purposes — research, private study ( section 38 of the Copyright Ordinance ), criticism, review/comment, or news reporting ( section 39 ).

Any act which is carried out for other purposes cannot be fair dealing, including acts carried out for education 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 factors ( section 38(3) of the Copyright Ordinance ):

1. the purpose and nature of the dealing;
2. the nature of the work; and
3. the amount and substantiality of the portion dealt with in relation to the original work as a whole.

The making of multiple copies of a work is not fair dealing ( section 38(2) ). 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 five 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 five 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

Because education is not one of the five prescribed purposes as mentioned above for fair dealing, and multiple copying is in any case not fair dealing, teachers cannot rely on the fair dealing defence for distributing copies of copyright materials to their students. Also, schools cannot rely on the fair dealing defence for committing any act in respect of copyright works.

However, the Copyright Ordinance does contain 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 of broadcasts and cable programmes by schools ( section 44 );
• reprographic copying (e.g. photocopying) made by schools of passages from published works ( section 45 ).

Section 45 of the Copyright Ordinance is important to teachers who intend to make multiple copies of copyright works for teaching purposes. As multiple copying is not regarded as fair dealing, teachers who wish to do so must rely on section 45, which permits the making of multiple copies to a "reasonable extent" for instructional purposes.

To provide guidance on the "reasonable extent" of multiple copying permitted under section 45 in relation to photocopying, the Intellectual Property Department of the Hong Kong SAR Government has formulated the " Guidelines for Photocopying of Printed Works by Not-for-profit Educational Establishments " setting out the conditions under which photocopying made by a school is permitted without infringing copyright.

Other Permitted Acts

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

• copying by librarians or archivists ( sections 46-53 );
• acts done for proceedings of the Legislative Council or judicial proceedings ( section 54 );
• copying 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 );
• 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 );
• 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 ).

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

1. Is it true that copyright law allows me to photocopy, for example, not more than 10% of a book?



2. I am a medical doctor and have my own clinic. Can I play movie DVDs in my clinic to entertain my patients while they are waiting?



3. I work night shifts and cannot watch my favourite television programmes when they are shown. Can I record them so that I can watch them when I am off from work?



4. I have 20 computers in my company and need to be cost-conscious when purchasing software. Can I install cheaper yet lawful copies of software purchased from other countries? Will it make any difference if there is an exclusive dealer of the software in Hong Kong?



5. Will I infringe any copyright if I take photographs of buildings in Hong Kong?



6. I am a teacher and have found a good article in a magazine. Can I make photocopies of the article and distribute them to my students for class discussion?



7. I am a teacher and like to collect reading materials for my students. If I scan those materials and put them on my website for my students to download, will I infringe copyright? What if I put them on the school's Intranet accessible only to my students?



8. Can a teacher copy examination questions found on the Internet and include them in his own examination paper for his students?



9. Can schools show movies without obtaining permission from the copyright owners? What about recording radio or television programmes?



10. My school plans to have an internal competition in which students will perform various dramas based on short novels written by local writers. Can my school do so without obtaining permission from the copyright owners?