Copyright in the Cyberspace FAQ

Q: Do copyright laws apply to publications made on the Internet?
A: Yes. Anybody connected to the Internet can easily post messages on the world wide web through message board, chat room and newsgroup. Copyright laws equally apply to Internet publications despite its easy and convenient use and access.

Q: On what law copyright is based upon?
A: The Copyright Ordinance gives express provisions on copyright.

Q: Does the copyright owner has to register his rights in order to obtain the legal protection?
A: No. Unlike other intellectual property rights such as trade mark and patent, copyright does not require any registration. Under the Berne Convention, Governments should not set any registration procedures as a condition of copyright protection.

Q: What works have copyright protection?
A: They are literary, dramatic, musical or artistic works, sound recordings, films, broadcasts or cable programs; and typographical arrangement of published editions.

Q: Any particular criteria is required for getting legal protection?
A: The works should not be ideas. It must be an expression. The works must also be original and satisfy the criteria of fixation. Fixation requires a work 'fixed' on certain media such as a poem written down on a piece of paper, musical works recorded in a tape. Works stored in the hard disk of a web server satisfies the fixation requirement.

Q: Does it amount to infringement by uploading musical works e.g. a song of Nicholas Tse from a licensed CD to the Internet for public download?
A: A purchased CD is licensed for personal listening only. Uploading musical works on the Internet would copy the song onto the hard disk of the web server thereby duplicating the work. As the duplication is open for public download, it violates the licence. It is also likely that the uploader has committed the restricted act of making available copies for copying.

Q: Does it amount to infringement if I do not copy the news article word by word and I do not copy the entire content?
A: The copyright owner only has to prove substantial copying. Substantiality means quantity and/or quality of copying and is decided based on facts of the case. In law, word by word copying is called literal copying. However, non-literal i.e. indirect copying is still an infringement.

Q: Why mp3.com settled litigation cases with the musical copyright agents?
A: mp3.com's legal position is comparatively weak. There are previous cases decided by the American court similar to mp3.com's context. They have all decided in favour of the copyright owner. The Playboy v. Frena case related to uploading of gif files (digitised by scanning from Playboy magazine) on BBS. The Sega v Maphia case related to uploading of game programs on BBS for download. However, these two cases are not binding on the Hong Kong Courts.

Q: Will Napster face the fate of being closed down by the American Court?
A: Napster is not like mp3.com. Napster does not upload any musical works on the Internet by itself. Users download the computer program and have it installed at its own PC, enabling musical files exchanged and download which people of Napster.com does not play a part. It is like manufacturer producing double cassette for people making copies (CBS Songs v Amstrad); RIO manufactures mp3 player for people to copy their favourite songs onto the mp3 player. In both cases the copyright owners failed in their legal action. But it should also be noted that recently HP has settled a legal action by agreeing to pay a certain sum of money to the copyright agent for every CD Writer produced by HP. It is highly likely that Napster's case will be settled out-of-court by the parties by Napster agreeing to pay royalties to the copyright agents.