LW4641 Chap.7 Fair Dealing and the Permitted Acts
Fair Dealing and the Permitted Acts
Defences, not rights
Division III of the Copyright Ordinance lists acts that may be done even though copyright subsists. Section 37(1) adds that the provisions concern infringement alone and leave every other right or duty untouched. That makes the permitted acts defences rather than user rights, and it means they do not by themselves override a contract term.
The list is long, running from research and study through criticism, quotation, news, parody and incidental inclusion to education, libraries, public administration and computer programs.
Purpose first, then fairness
The fair dealing provisions work in two stages.
The use must first fall within a listed purpose and satisfy that section's conditions, such as prior release of the work to the public and sufficient acknowledgement.
Only then does the court ask whether the dealing is fair, taking into account all the circumstances and in particular the purpose and nature of the dealing, the nature of the work, the amount and substantiality of the part used, and the effect on the potential market for the work.
The leading applications
Research and private study under s38 applies to all works, but copying by someone else for several people is not fair dealing.
For criticism and review under s39, Pro Sieben held that purpose is judged objectively and read criticism broadly, and Time Warner v Channel 4 accepted a programme criticising a film's withdrawal. In Hyde Park Residence v Yelland, stills from a security video were published in reporting a current event but failed the fairness analysis.
Incidental inclusion under s40 means casual or background use, and deliberately included music is excluded.
Contracts and mining
Because of s37(1), a licence can restrict a use fair dealing would allow, and Hong Kong has no general rule preventing that. Hong Kong also has no specific text and data mining exception.
The government consultation proposed one with an opt-out and deference to licensing schemes, closer to the EU model than to Singapore's, which cannot be excluded by contract.
What this chapter covers
- 01
Section 37(1) and the nature of the permitted acts
- 02
The four fairness factors
- 03
Research and private study under s38
- 04
Criticism, review and quotation under s39
- 05
Reporting current events and Hyde Park v Yelland
- 06
Parody and incidental inclusion
- 07
Contract override and text and data mining
Worked example · free
Run a fair dealing defence in the right order
- 2Identify the listed purpose and check release to the public.
- 3Decide whether the acknowledgement is sufficient.
- 4Weigh the fairness factors and conclude.
Key terms
- Permitted Act
- An act listed in Division III that may be done without infringing copyright; under s37(1) it affects only infringement, not other obligations.
- Current Event
- A matter of importance that is contemporary or still under discussion, even if it happened some time ago.
- Incidental Inclusion
- Casual, non-essential or background appearance of a work inside a film, broadcast, sound recording or artistic work, which does not infringe.
- Transformative Use
- In United States fair use, a use with a further purpose or different character, weighed as a matter of degree against commercialism.
- Contract Override
- A licence term that restricts a use a statutory exception would allow; Hong Kong has no general rule preventing it.
- Text And Data Mining
- Using automated tools to analyse large amounts of text and data; Hong Kong has no specific exception for it yet.
- Three-step Test
- The Berne principle that exceptions must be limited to special cases, must leave the normal exploitation of the work undisturbed, and must not cause the owner unreasonable prejudice.
Fair Dealing and the Permitted Acts FAQ
Does Hong Kong have fair use like the United States?
No. Hong Kong uses fair dealing, which only applies to purposes the Ordinance lists, such as research and private study, criticism and review, quotation, news reporting and parody. Within those purposes fairness is judged on all the circumstances and four factors, while United States cases on transformative use are set for reference only.
Do I have to credit the author when quoting a work in a review?
Generally yes. Criticism, review and quotation require a sufficient acknowledgement, although it need not be express: any indication that would tell a reasonably alert member of the audience who the author is will do, and none is needed where the work was published anonymously or identification is not reasonably practicable.
Can a website's terms of use stop me relying on fair dealing?
Possibly. Section 37(1) says the permitted acts affect only the question of infringement and not other obligations, and Hong Kong has no general provision stopping a contract from excluding them. A court might still be sceptical of a term that tries to remove a statutory defence, so the answer depends on the contract.
Exam move
For each permitted act in s38 to s40, write its conditions as a checklist on one card, with the case that decided each condition beside it. In the exam, run the card top to bottom before weighing any factor. Candidates who skip the conditions and go straight to fairness lose the easiest marks in the defence.
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