Skip to content

Something urgent? Call us now! (852) 3416 1711

At last, copyright law comes of age

By Alex Liu

Hong Kong, 10 February 2023: After well over a decade of debates and delays, Hong Kong has finally passed legislation to update its archaic copyright regime, making it more suited to the digital age and aligned with international standards. The Copyright (Amendment) Ordinance 2022 was gazetted shortly before Christmas and will come into effect on a date yet to be decided, although this is expected to be soon.

Efforts to reform this city’s copyright regime began as far back as 2006, but the resulting bills twice failed to get through the Legislative Council, in 2011 and 2014. This meant the Copyright Ordinance (Cap. 528) had not been updated since it came into force in 1997.

Aware of the urgent need for a more modern regulatory regime, the government conducted a three-month public consultation ending in February last year and tabled the new legislation last June. It was passed by LegCo in early December. The Amendment Ordinance covers five broad areas:

  1. To introduce an exclusive technology-neutral communication right for copyright owners in light of technological developments;
  2. To introduce criminal sanctions against infringements relating to the new communication right;
  3. To revise and expand the scope of copyright exceptions to allow use of copyright works in certain common internet activities;
  4. To introduce “safe harbour” provisions to provide incentives for online service providers (OSPs) to co-operate with copyright owners in combating online piracy and to provide reasonable protection for their acts; and
  5. To introduce two additional statutory factors for the court to consider when assessing whether to award additional damages to copyright owners in civil cases involving copyright infringements.

Expanding on the above, point 1 is important because it extends to streaming. The current regime limits the owner’s rights to “copying”, “performing, showing or playing” or “broadcasting”, but not streaming which, technically, does not involve copying. The new legislation plugs this loophole and is a clear deterrent to platforms which attempt, for example, to stream films to a mass audience.

Point 2 is intended to penalise individuals who facilitate unauthorised communication of copyright works to the public for profit or to prejudice copyright owners. The court has scope to look into all the circumstances of a case, including the economic prejudice experienced by the copyright owner.

There remains the defence that the accused individual did not know and had no reason to believe they were infringing copyright, if they have evidence to support this.

The range of copyright exemptions is significantly expanded in point 3 to facilitate online learning – for example, lessons provided by educational establishments – and operation of libraries, museums and archives. It also covers fair dealing with a copyright work for the purposes of parody, satire, caricature or pastiche, and for the purposes of review or criticism. Under the existing law, there is no specific defence for parody, meaning it carries significant infringement risk. As well, the new legislation allows for so-called media shifting, that is converting a work to a different media format for private and domestic use.

With regard to point 4, OSPs will generally welcome the safe harbour provisions that protect them from liability for illegal actions which take place on their platform but should note they have certain obligations, such as taking reasonable steps to stop a copyright infringement once they have been notified. Further details about how OSPs are expected to comply will be contained in a forthcoming Code of Practice.

For point 5, it should be noted that courts can already award additional damages for copyright infringements. The new regime adds two more factors for the court to consider: the unreasonable conduct of an infringer after having been informed of the infringement; and the likelihood of widespread circulation of infringing copies as a result of the infringement.

In summary, copyright protection is an essential component of any intellectual property (IP) regime in that it safeguards original works, including those in the literary and artistic fields, and is crucial to the development of creative industries. The new legislation will strengthen Hong Kong’s IP landscape and ensure it stays in step with international standards so as to encourage creativity and technological development.

However, our government has not finished yet. Once the legislation is implemented, the authorities intend to embark on a new round of review to examine copyright issues which have not been addressed in the Amendment Ordinance. These may include data mining, works created by artificial intelligence and the use of copyright works in which the owner cannot be identified. For the time being, though, the new legislation which puts Hong Kong in step with the digital revolution is both welcome and long overdue.

A Partner in BC&C since 2000, Alex Liu’s key areas of practice include commercial and corporate litigation, investigations by governmental bodies such as the SFC, ICAC and Commercial Crime Bureau, insolvency and debt restructuring, intellectual property and employment matters. He can be contacted at

37+ years of legal experience is just a click away.

Friendly and approachable, we are ready to answer your questions and offer you sound advice.

Contact us now


News & Knowledge

Learn more about what we do and what we say. Subscribe to our newsletter to ensure you receive our updates.

  • This field is for validation purposes and should be left unchanged.

Ally Law embraces global challenges

Hong Kong, 24 March 2023: The future is bright for global legal services organisation Ally Law after a successful AGM which focused on business sustainability and best practices for building resilient, forward-thinking law firms. More than 120 delegates from around the world – including BC&C Senior Partner Colin Cohen – gathered in Sydney for four […]

Read more

When home security is not so smart

By Claire Chow Hong Kong, 22 March 2023: So-called smart homes have become increasingly popular in recent years, with many households installing surveillance cameras that allow the user to check what is happening at their residence, via mobile phone, while they are out and about. Such devices, which have the capacity to record, are seen […]

Read more

Young mooters show their maturity

Hong Kong, 20 March 2023: Colin Cohen has praised the high standard of participating teams in the annual Red Cross International Humanitarian Law Moot following four days of intense competition at various venues in Hong Kong. A total of 24 universities and law schools from across Asia-Pacific argued a fictional case concerning alleged war crimes […]

Read more

And the winner is … HK’s resilience

Sydney, 15 March 2023: Everything Everywhere All at Once – an Oscars-dominating movie and an apt description of my travel schedule, which has taken me to Bangkok, Tokyo and now Sydney, where I’ve just arrived for the AGM of Ally Law. Only a few months ago, plane-hopping in and out of Hong Kong was unthinkable, […]

Read more

Cohabiting couples, limited rights

By Gabriella Chan Hong Kong, 10 March 2023: It is well documented that marriage in Hong Kong is on the decline. Figures released by the Census and Statistics Department last summer revealed the crude marriage rate – the number of marriages per 1,000 in the population – hit 30-year lows of 6.7 for women and […]

Read more