BUSINESS SOFTWARE ALLIANCE

PRESENTATION TO THE
BILLS COMMITTEE ON THE COPYRIGHT BILL
LEGISLATIVE COUNCIL
18 April 1997
SUBMISSION

What is the Business Software Alliance?

The Business Software Alliance (BSA) is a non-profit trade organization whose membership comprises some of the leading business software companies in the world. The BSA is committed to increasing the legitimate market for software and discouraging copyright abuse. BSA implements global initiatives addressing education, public policy and enforcement in more than 65 countries.

Worldwide BSA members include Adobe Systems, Apple Computer, Autodesk, Bentley Systems, Lotus Development, Microsoft, Novell, The Santa Cruz Operation and Symantec. These BSA members are also members of the BSA Policy Council together with industry leaders such as Computer Associates, Digital Equipment Corporation, IBM, Intel and Sybase. The BSA Policy Council focuses on law reform and policy issues.

The Copyright Bill

The Business Software Alliance (BSA) commends the efforts of the Trade & Industry Branch of the Hong Kong Government, and in particular the Intellectual Property Department, in producing the Copyright Bill.

BSA also commends the efforts of the Intellectual Property Department in seeking and listening to the views of relevant industries or their members on the Copyright Bill and making amendments to the Bill prior to publication as a result of the consultation process.

We believe that the enactment of Hong Kong’s own consolidated copyright law is an important step for Hong Kong, both in terms of Hong Kong’s prestige as a stand-alone jurisdiction for the enforcement and protection of intellectual property rights and the development of copyright law in Hong Kong.

PROVISIONS SUPPORTED BY THE BSA

The BSA gives its full support to the Administration as it works towards the enactment of Hong Kong’s new copyright law. In particular, the proposals contained in the Copyright Bill for the strengthening of the powers of the officers of the Customs & Excise Department and for the enactment of provisions to facilitate the successful prosecution of infringers are most welcomed.

The specific provisions supported by the BSA are set out below.

1. Definition of Literary Works

The BSA supports the inclusion of "computer programs" within the definition of "literary works" and the expansion of the definition of "a table of compilation" to include databases in accordance with the World Intellectual Property Organisation’s (WIPO) Treaty on Copyright.

2. Authorship

The BSA supports the statutory recognition that computer generated works are protected by copyright as literary works.

3. Rental Rights

Section 25 of the Copyright Bill provides that the rental of computer programs and sound recordings are restricted acts in accordance with the Intellectual Property (World Trade Organization Amendments) Ordinance. BSA fully supports this provision.

4. Exports

The introduction of the civil and criminal liability for the export of infringing copies is welcomed by the BSA, as is the broadened definition of "infringing copy" in Section 30 of the Copyright Bill.

5. Forfeiture

Section 127 of the Copyright Bill is an extremely important new provision, which should be of great assistance to the Customs & Excise Department in Hong Kong in terms of enforcement at the retail level. BSA supports this provision.

6. Object Code

BSA supports the additional presumptions in Section 118 based on affidavits to facilitate proof of copyright subsistence and ownership. The proposed clarification that computer programs in object code will be admissible to accompany such an affidavit is welcomed. However, Section 118(1) should be amended to state expressly that a computer program in object code is an "authorized copy" of the computer program in source code.

7. Remedies

BSA supports the increased penalties under Sections 115 – 117 of the Copyright Bill. The two-tier system of first time and repeat offenders has been simplified into one level of penalties, pegged at the level for repeat offenders. The increased penalties are much needed and BSA fully supports them.

PROVISIONS NOT SUPPORTED BY THE BSA

1. Closure Orders

The BSA has been making representations to the Administration to consider enacting provisions which will empower Hong Kong Customs & Excise Department to close down businesses that are operated for the purpose of selling and distributing infringing copies of copyright work. Similar powers are available to enforcement authorities in the area of prostitution and gambling.

BSA is encouraged that the Administration seeks to introduce a Committee Stage Amendment, which will expand the scope of Section 33 of the Copyright Bill to include civil liability "for knowingly permitting their premises to be used for copyright infringement activities for trade or business purpose". The BSA urges the Adminstration to consider imposing criminal as well as civil liability under this provision. Software theft is no less a criminal offence and is just as damaging to Hong Kong.2. Decriminalization of parallel importsThe BSA regrets any weakening of the existing law as it relates to the decriminalization of parallel imports. In a territory where computer software piracy is rampant, any weakening of the law gives succour to infringers and makes criminal or civil enforcement activities even more difficult.3. DamagesThe existing legal entitlement to conversion damages has not been retained in the Copyright Bill. The BSA opposes any weakening of the existing law in the present circumstances of blatant and uncontrolled software piracy in Hong Kong.

4. Self-Help Remedies

There is no provision in the Copyright Bill similar to section 100 of the U.K. Copyright, Designs & Patents Act 1988. A "self-help" remedy of this nature adjusted to meet the circumstances prevalent in Hong Kong would be extremely effective in Hong Kong and is an essential tool in the hands of copyright owners to supplement the efforts of the Customs & Excise Department.

There are an increasing number of arcades in Hong where pirated computer software and other pirated copyright works are openly and habitually displayed for sale. The introduction of a "self-help" remedy would be a significant new initiative in the battle to eradicate the software piracy at the retail level. This provision is far more needed in Hong Kong than in the U.K. where software piracy is not so prevalent. There are no local circumstances that weigh against the introduction of the remedy, provided the necessary safeguards against misuse are also enacted. The safeguards included in Section 100 of the UK Act are entirely appropriate for Hong Kong.

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