LW4641 Chap.6 Restricted Acts and Infringement
Restricted Acts and Infringement
Three stages, always in order
The lecture's summary of the infringement analysis gives the structure for every problem question: first subsistence, then infringement, then defences. Primary infringement means doing a restricted act without licence. Secondary infringement concerns infringing copies, requires knowledge and is limited to particular kinds of dealing.
Defences come last: the general defences, the statutory permitted acts with their fair dealing analysis, and for secondary infringement the questions of reason to know and safe harbour.
The restricted acts
Section 22 lists the acts only the owner may do or authorise, and the following sections define them: copying under s23, issuing copies to the public under s24, rental under s25, public performance, playing or showing under s27, communication to the public under s28A, and adaptation under s29.
Sections 26 and 28 have been repealed. An act infringes whether it takes the entire work or only a substantial part of it.
The communication right
The Copyright (Amendment) Ordinance 2022, in force from 1 May 2023, made communication to the public a technology neutral right with matching criminal sanctions, added new exceptions and created a safe harbour for online service providers.
Communication covers broadcasting, cable services and making a work available so that people can access it at a time and place they choose.
The person who communicates is the one who determined the content; merely gaining access, receiving a transmission or providing facilities is not enough.
Secondary infringement
The Lecture 5 reading list sets ss30 to 35. The provisions reach importing or exporting an infringing copy, possessing or dealing with one in business, providing the means to make infringing copies, and permitting premises or supplying apparatus for an infringing performance.
The common thread is that the defendant knew or had reason to believe the copy was infringing. The course materials illustrate platform liability with two Chinese decisions on AI image services, one finding direct and one only indirect liability.
What this chapter covers
- 01
Subsistence, infringement and defences in order
- 02
The restricted acts in ss22 to 29
- 03
Whole or substantial part
- 04
The s28A communication right and the 2022 reforms
- 05
Who determines the content of a communication
- 06
Secondary infringement in ss30 to 34
- 07
Knowledge and reason to believe
Worked example · free
Sort defendants into primary and secondary liability
- 2Confirm subsistence and ownership of the video.
- 4Classify the gym's conduct and the supplier's conduct under the right sections.
- 3State the knowledge element for each secondary claim.
Key terms
- Primary Infringement
- Doing, or authorising, one of the restricted acts without the owner's licence; no knowledge is required.
- Communication Right
- The technology neutral exclusive right in s28A to communicate a work to the public, including by making it available online.
- Making Available
- Putting a work where members of the public can access it from a place and at a time they individually choose, as on the internet.
- Infringing Copy
- A copy whose making infringed copyright, or would have done if made in Hong Kong; secondary infringement turns on dealing with one.
- Safe Harbour
- The regime introduced in 2023 that limits the liability of online service providers for material on their services, set out in Division IIIA of the Ordinance.
- Reason To Believe
- The objective knowledge standard in secondary infringement, satisfied where the facts known would lead a reasonable person to suspect the copy was infringing.
Restricted Acts and Infringement FAQ
What is the difference between primary and secondary infringement?
Primary infringement is doing a restricted act without licence, such as copying a work or putting it before the public electronically, and knowledge is irrelevant. Secondary infringement covers dealing with infringing copies or facilitating infringement, such as importing, selling or supplying apparatus, and it requires proof that the defendant knew or had reason to believe.
Does linking to a film online count as communicating it to the public?
Not automatically. Under s28A the person who communicates is the one who determined the content of the communication, and merely providing facilities is not communication. A site that only lists links needs further analysis of what it controls, of authorisation, and of the safe harbour for service providers.
What changed in Hong Kong copyright law on 1 May 2023?
The Copyright (Amendment) Ordinance 2022 took effect, introducing a technology neutral exclusive communication right with corresponding criminal sanctions, several new and expanded exceptions, and a safe harbour regime for online service providers. Older materials citing s28 for broadcasting are out of date, since that section is repealed.
Exam move
Draw the three-stage analysis on one index card and put the section numbers for each restricted act and each secondary infringement underneath. Then take the facts of any practice problem and label every party with a section before writing a word. The card becomes the first tab in your printed exam notes.
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