SELF-HELP REMEDIES


The Copyright, Designs and Patents Act 1988 (UK) provides at section 100 that when infringing copies of a copyright work are displayed for sale and sold from premises, the copyright owner may enter the premises and seize and detain those infringing copies. The effect of this is that representatives of copyright owners (e.g. lawyers and investigators) can undertake raid actions at market areas without the need to obtain any Court order.

This section provides significant new powers to copyright owners. To ensure that these powers are not abused, safeguards are built into the section, as follows:-

before anything is seized, notice of the time and place of the proposed seizure must be given to the local police station;

when anything is seized, a notice must be left setting out the grounds on which the seizure was made and on whose behalf;

any party can apply to the Court for release/forfeiture of seized goods;

no force can be used.

These safeguards ensure that there is a fair balance between the rights of copyright owners and those of distributors.

There is one aspect in which the UK provision is inappropriate to the situation in Hong Kong. The provision prohibits seizure from people who operate from a "permanent or regular place of business". The provision is therefore restricted to "car boot sales" and other temporary market areas. If this was applied to Hong Kong, the provision would be restricted to non-fixed hawkers. However, in Hong Kong, the most rampant piracy takes place from permanent Arcades such as the Golden Shopping Arcade, 298 Hennessy Road, Mongkok Computer Centre, Sino Centre etc. For the provision to be effective in Hong Kong, it should not be restricted to non-fixed hawkers.

We attach at Annexure A the UK provision and at annexure Bour suggested provision for Hong Kong.

Annuexure A

Section 100. Right to seize infringing copies and other articles

  1. An infringing copy of a work which is found exposed or otherwise immediately available for sale or hire, and in respect of which the copyright owner would be entitled to apply for an order under section 99, may be seized and detained by him or a person authorised by him.

    The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section 114.

  2. Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.

  3. person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not seize anything in the possession, custody or control of a person at a permanent or regular place of business of his, and may not use any force.

  4. At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.

  5. In this section –

    ‘premises’ includes land, buildings, moveable structures, vehicles, vessels, aircraft and hovercraft; and

    ‘prescribed’ means prescribed by order of the Secretary of State.

  6. An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.


Annuexure B

Section [ ] . Right to seize infringing copies and other articles

  1. An infringing copy of a work which is found exposed or otherwise immediately available for sale or hire, and in respect of which the copyright owner would be entitled to apply for an order under section 106, may be seized and detained by him or a person authorised by him.

    The right to seize and detain is exercisable subject to the following conditions and is subject to any decision of the court under section 108.

  2. Before anything is seized under this section notice of the time and place of the proposed seizure must be given to a local police station.

  3. A person may for the purpose of exercising the right conferred by this section enter premises to which the public have access but may not use any force.

  4. At the time when anything is seized under this section there shall be left at the place where it was seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.

  5. In this section –

    ‘premises’ includes land, buildings, moveable structures, vehicles, vessels, aircraft and hovercraft; and

    ‘prescribed’ means prescribed by order of the Governor in Council.

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