There is a close relationship between the authors and their works. The more familiar you are about this relationship, the more confident you will be in protecting your rights over your work. Now ask yourself: How much do I, as an artist/creator, know or understand about my work? A lot? Too little?

Basics

Copyright, as the word clearly implies, is the "right to copy". A person who creates a work will have the right to copy his own work. This person is referred to as the author of the work. As such he is recognised as the owner of the copyright of his work. The owner has the right to use the work in any way he chooses, including the act of granting the copyright away to whoever he chooses.

If A is the owner of the copyright and decides to give B permission to copy/use the work, then B will be able to copy/use his work without infringing any copyright. If B used A's work without asking A or after A had refused to let B use his work, then B will be guilty of infringing A's copyright.

Copyright infringement is against the law and the copyright owner has the right to seek legal action against the infringer to safeguard his rights. The owner may also be able to claim any loss (damages) which stems from the infringer's use and seek the return of all infringing items to the owner.

What is Infringement?

Apart from copying the whole work or any substantial part without the owner's permission, infringement of a copyright work also includes: issuing or making available copies of the work to the public by any means (including via the internet); to perform, play or show the work in public; and making adaptations of the work (e.g. from book to film), or authorising another person to do any of the above acts without permission from the owner of the copyright.

If the person knows that he is handling a work (e.g. a pirated CD) which infringes someone's copyright, he will be infringing the owner's copyright for purposes of trade, which includes leasing out or hiring, importation or export of such items.

Permission to Copy

If B requests A permission to use his work and receives it, we say that A has given B a licence to use his work. The terms of the licence will be determined by agreement between A and B. This can be written or verbal unless it is an exclusive licence, which will have to be in writing. (An exclusive licence is a licence which excludes even the right of the owner.)

The terms of a licence agreement should include the extent to which B can use A's work. It may include a payment to A, the period of time B can use A's work or whether B can commercially exploit it etc. The clearer the terms listed in the agreement, the lesser the chances of a dispute or or misunderstanding between the parties concerned.

Also, since there may be more than one copyright in a work, you may need to ask more than one party for permission!

Is Permission always Necessary?

Not always. There are over 50 sections in the Copyright Ordinance which deal with "permitted acts" of copying which means people can use the works without infringing their copyright and, therefore, without seeking special permission for this. Although there are no clear criteria as to which kind of work comes under this category, the "permitted acts" usually include private and domestic uses. The rule of thumb is that use should not prejudice the legitimate interests of the copyright owner.

There are even less strict rules for use of copyright material by educational establishments; libraries and archives; criticisms, review and news reporting; and for public administration.

Get Permission from the Right Person

Although it is usually safe to ask the author for copying permission, the author may sometimes not be the owner of the copyright:

When Copyright Is Assigned

Sometimes, the author may dispose of all or part of his copyright to someone else, usually a company, so that the work can be exploited commercially. We say that the author has assigned his copyright to the company. To be effective, an assignment of copyright has to be in writing and be signed by or on behalf of the assignor.

Commissioned Work

Sometimes, the author creates a work under commission. A good practice is to draw an agreement to clarify who owns the copyright of the commissioned work after it is created and for how long. If an agreement is not drawn, the copyright of the work will belong to the author and the commissioned party will only have an exclusive licence to use the commissioned work for the specific reason it was commissioned.

Work by An Employee

If a work is created by an employee during his course of employment, the employer is the first owner of the copyright of the work UNLESS there is an agreement to the contrary between the employee and the employer. If this work is exploited in a way that was not contemplated by the employee or the employer at the time the work was commissioned, the employee may be entitled to an award/compensation when his work is subsequently exploited.

Where to Register to Obtain Copyright?

In Hong Kong, there is as yet no copyright registry wherein to register your work. If you create a work, be it a work made up of words, graphics, notations, image, electronically or even three-dimensional, copyright will subsist in the works automatically. (See appendix)

The best part of copyright is that the work does not even need to have artistic merit! Your copyright will be valid in Hong Kong and most other countries.

How do I Protect my Copyright?

Although there is no requirement to put anything on your work, a good practice is to place a copyright notice at the end of a work and which any third party cannot help noticing. This will help to alert any potential infringer against abuse or misuse.

The most common one is:

© (name of copyright owner)(year completed)
[All rights reserved] *

* Make sure you have not assigned any rights away before you put [All rights reserved].

You will see this notice in almost all books. Never put ® instead of ©. ® means a registered trade mark, which is something completely different. It is also good practice to put your contact details with the copyright notice so that people can look you up if they wish to use/copy your work.

What are my Rights as a Performer?

A performer has the right to consent to the exploitation of his performance. He can prohibit any filming or recording (visual or sound) of his performance.

Moral Rights

All authors of literary, dramatic, musical or artistic work and the director of a film have moral rights. These rights can be waived but cannot be assigned. They are i) the right to be identified as the author or director; ii) the right to object to derogatory treatment of the work and iii) the right not to have works falsely attributed to him. The first two rights stay with the author/director for life and the third right 20 years after the death of the author/director.

The right to be identified as the author or director needs to be asserted. The following words have to be printed on the product for the purpose:

"The right of (name of author/director) to be identified as author/director of this work has been asserted by him/her in accordance with section 90 of the Copyright Ordinance."

The Source

Hong Kong's Copyright Law is from the Copyright Ordinance which became effective on 27 June 1997. For copyright works created before this date, the old law will have to be referred to. There are special provisions in the Copyright Ordinance which deal with this.

The information given in this article is only an outline. You may wish to refer to the Copyright Ordinance for detailed coverage or seek assistance from a lawyer.

Margaret Yang
Chief Executive Officer of Hong Kong Sinfonietta
Once worked in Lovell White Durrant as a solicitor
specialising in intellectual property

---

APPENDIX

Types of copyright, Author(s) and Duration of Copyright

Type	Remarks	Author
Literary Works	Any written, spoken or sung work including tables compilations, computer programmes	The person(s) who created the work
Dramatic works	Work of dance or mime	The person(s) who created the work
Musical works	Work consisting of music	The person(s) who created the work
Artistic works	Graphic work, photographs, sculpture, building or model of one; work of artistic craftsmanship	The person(s) who created the work

For the above works, copyright expires at the end of the period of 50 years from the end of the calendar year in which the author dies. In case of joint authorship, 50 years from the last author who dies.

Also for the above works, if the identity of an author is unknown, and if it is not possible for a person to ascertain his identity by reasonable inquiry, and if it is reasonable to assume that copyright has expired, there will not be any infringement by acts of copying.

Type	Remarks	Author	Duration
Sound Recording	Regardless of medium or method	The producer	50 years from the end of the calendar year in which it is made OR 50 years from the end of the calendar year in which it is released.
Films	Sound-track accompanying film is treated as part of film	The producer and the principal director	50 years from the end of the calendar year in which the last of the following people die (if known): the principal director; the author of the screenplay; the dialogue or the composer of the film music. identity of the above is not known, end of 50 years from the end of the calendar month in which the film was made OR 50 years from the year in which the film was made available to the public.
Broadcasts	Transmission by wireless telegraphy	Person(s) making the broadcast	50 years from the end of the calendar year in which the broadcast was made.
Cable Programmes		The person providing the cable programme service in which the programme is included	50 years from the end of the calendar year in which the broadcast was made.
Typographical Arrangements		The publisher	25 years from the end of the calendar year in which the edition was first published.