Copyright Tribunal

Frequently Asked Questions

Frequently Asked Questions

 
 

Q1

Who can make an application to the Copyright Tribunal (the Tribunal)?

Q2

What rules govern the proceedings before the Tribunal?

Q3

How can proceedings be commenced in the Tribunal?

Q4

If a respondent decides to serve a response, what should he do?

Q5

How can one apply to be made a party to the proceedings as an “intervener”?

Q6

Would the parties to the proceedings be given any guidance from the Tribunal on how to proceed with the application?

Q7

Is there any consequence for failing to comply with any order or direction?

Q8

Is the Tribunal bound by any rules of evidence?

Q9

How are the parties to the proceedings notified of the decision of the Tribunal?

Q10

Can a party appeal against the Tribunal’s decision?

Q11

What happens to the Tribunal’s decision pending an appeal to the Court?

Q12

Does the Tribunal have power to make a costs order?

Q13

After an application is made to the Tribunal, can it be withdrawn?

Q14

Can the parties engage in mediation after the proceedings have been commenced?

Q15

Can a party appoint a representative to act for him/her in the proceedings?

Q16

What language(s) can be used in the proceedings?

Q17

Can a non-party have access to the documents served by parties in any proceedings?

Q18

I made an application to the Tribunal before the commencement date of the Copyright Tribunal Rules (Cap.528D). Is my application subject to the Rules?

   
   

Q1

Who can make an application to the Copyright Tribunal (the Tribunal)

   

 

In the case of a dispute between the operator of a licensing scheme that is in operation and a person requiring a licence or an organisation representing such persons, the person or organisation may refer the scheme to the Tribunal. In the case of a licensing scheme which is proposed to be operated by a licensing body, a reference of the terms of the scheme to the Tribunal can only be made by the organisation claiming to represent the persons seeking the licences. A further reference of the scheme can be made to the Tribunal by the operator of the scheme, a person requiring a licence of that description or an organisation representing such persons.

   
 

A person who has been denied a licence under a licensing scheme or who considers the proposed terms for a licence to be unreasonable may apply to the Tribunal for the grant of a licence or the grant of a licence on such terms as may be determined by the Tribunal. The operator of the scheme or the original applicant may apply to the Tribunal for a review of an order so made for the grant of a licence.

   
 

In respect of licences granted by a licensing body other than under a licensing scheme, a prospective licensee may refer the terms of the proposed licence to the Tribunal. The licensee of a licence about to expire may apply to the Tribunal for the continuation of the licence. The licensing body or the beneficiary of an order in either of the above situations may apply for a review of the order.

   
 

Persons seeking consent for making a copy of a fixation of a performance or for renting a sound recording in which a performance is fixed can, where the identity or whereabouts of the right owners cannot be ascertained after reasonable enquiry, apply to the Tribunal for the consent.

   
 

For matters relating to the award payable for use of copyright work of an employee beyond the reasonable contemplation of the terms of the employment, either the employer or the employee can apply to the Tribunal for a determination.

   
 

As regards the power that the Tribunal has in determining the amount of the equitable remuneration or compensation payable, the party by whom or to whom the payment is to be made can make an application to the Tribunal.

 
   

Q2

What rules govern the proceedings before the Tribunal?

   

 

The Copyright Tribunal Rules , Cap. 528D (the Rules) govern the practice and proceedings before the Tribunal.

Under the Rules, the Tribunal may issue practice directions to regulate its own procedure and set out the practice and procedure for complying with the Rules. Although practice directions do not have the force of law, they supplement the Rules in regulating the procedural matters in practice. Following the practice directions will ensure compliance with the procedures laid down by the Rules.

The Rules and the practice directions (if any) can be found at: http://www.ct.gov.hk/eng/ordinance.html . The relevant forms and fees payable in respect of the proceedings can be found at http://www.ct.gov.hk/eng/forms_and_fees.html .

   
 
   

Q3

How can proceedings be commenced in the Tribunal?

   

 

All proceedings before the Tribunal must be commenced by an originator serving an application in the specified form set out in Schedule 1 of the Rules on the Secretary of the Tribunal (the Secretary), accompanied by the prescribed fee. The application must contain a concise statement of the facts in support of the application and specify the relief sought. The statement of facts must be verified by a statement of truth signed by the originator or his/her representative.

Upon receipt of an application, the Secretary will serve an acknowledgement of receipt of the application on the originator. A copy of the application will also be served on the respondent, unless the application is rejected by the Tribunal or the application is made ex parte.

Unless the Tribunal instructs otherwise, the Secretary will also publish a notice of the application as soon as practicable. Such notice contains certain relevant information of the application, such as the name of the originator and the particulars of the relief sought by the originator. In particular, the notice stipulates the time limit within which a person or organisation may apply for leave to intervene in the proceedings. Please refer to Q5 for further details in this regard.

   
 
   

Q4

If a respondent decides to serve a response, what should he do?

   

A respondent may serve a response to the application on the Secretary in the specified form set out in Schedule 2 of the Rules, accompanied by the prescribed fee. The response must contain a concise statement of the facts in support of the response and specify the relief sought. The statement of facts must be verified by a statement of truth signed by the respondent or his/her representative.

A response must be served on the Secretary within 28 days from the date on which the application was served on the respondent, unless otherwise specified by the Tribunal.

   
 
   

Q5

How can one apply to be made a party to the proceedings as an “intervener”?

   

Within the time limit stated in the notice of the application mentioned in Q3, any person or organisation with substantial interest in the matter to which an application relates may apply for leave to be made a party to the proceedings as an “intervener”.

A request for leave to intervene must be served on the Secretary in the specified form set out in Schedule 3 of the Rules, accompanied by the prescribed fee. The request must contain a concise statement of the facts in support of the request and specify the relief sought. The statement of facts must be verified by a statement of truth signed by the intervener or his/her representative.

The Tribunal may grant the leave to intervene on any terms it thinks fit, if it is satisfied that the intervener has a substantial interest in the matter to which the application relates.

   
 
   

Q6

Would the parties to the proceedings be given any guidance from the Tribunal on how to proceed with the application?

   

The Tribunal may at any stage of the proceedings, whether on its own initiative or at the request of a party, give any order or direction as specified in the Rules, or as the Tribunal thinks fit to secure the just, expeditious and economical conduct of the proceedings . For example, the Tribunal may give orders or directions concerning the manner in which the proceedings are to be conducted, the discovery and inspection of any documents and the giving of evidence.

   
 
   

Q7

Is there any consequence for failing to comply with any order or direction?

   

Yes. If a party fails to comply with any order or direction given by the Tribunal, the Tribunal may order that the party be debarred from taking any further part in the proceedings without the leave of the Tribunal, or give any consequential or further orders or directions that it thinks fit.

   
 
   

Q8

Is the Tribunal bound by any rules of evidence?

   

 

The Tribunal is not bound by the rules of evidence and may receive and take into account any relevant evidence, whether or not it would be otherwise admissible in a court of law. Orders or directions as to the manner in which evidence is to be admitted or given may be provided by the Tribunal on its own initiative or at the request of a party during any stage of the proceedings.

   
 
   

Q9

How are the parties to the proceedings notified of the decision of the Tribunal?

   

The decision of the Tribunal and the reasons for it may be delivered orally or in writing as the Tribunal thinks fit. If the decision and the reasons have been delivered orally, a party intending to bring an appeal may request that the decision and the reasons be recorded in writing. Such request must be in writing and served on the Secretary.

If the decision and the reasons for it are delivered or recorded in writing, the Secretary must serve on every party a copy of the Tribunal’s decision and the reasons for it as soon as practicable. The Secretary must also arrange for the decision to be published in a manner that the Tribunal directs.

   
 
   

Q10

Can a party appeal against the Tribunal’s decision?

   

Yes. A party may appeal against the Tribunal's decision but only on a question of law. An appeal must be brought to the Court of First Instance (the Court) within 28 days after the decision is delivered or recorded in writing or within a further period that the Court allows.

   
 
   

Q11

What happens to the Tribunal’s decision pending an appeal to the Court?

   

Unless the Tribunal or the Court (as the case may be) orders otherwise, an appeal does not operate as a stay of the decision appealed against.

Pending the determination of an appeal, a party may request the Tribunal to suspend the operation of the decision under appeal. Such request must be made in writing, accompanied by the prescribed fee and served on the Secretary and every other party within 7 days after the appeal has been brought.

   
 
   

Q12

Does the Tribunal have power to make a costs order?

   

Yes. The Tribunal may order a party to pay the costs of any other party for the whole or part of the proceedings in special circumstances, for example, if the paying party has conducted the case in a frivolous or vexatious manner, or has otherwise abused the process of the Tribunal. The Tribunal may also direct the costs ordered are to be paid immediately or at the time that the Tribunal may otherwise specify.

   
 
   

Q13

After an application is made to the Tribunal, can it be withdrawn?

   

Yes. The originator of an application may withdraw an application with the leave of the Tribunal. A request for leave must be served on the Secretary in writing, accompanied by the prescribed fees. The Tribunal may grant the originator leave to withdraw an application on any terms it thinks fit.

   
 
   

Q14

Can the parties engage in mediation after the proceedings have been commenced?

   

Yes. As part of active case management of the Tribunal, the Tribunal may encourage and facilitate the parties to use an alternative dispute resolution procedure, including in particular mediation, if the Tribunal considers appropriate.

If the parties wish to engage in mediation, they must first attempt to reach agreement on the appointment of a mediator. If they fail to reach agreement, they may make a joint request to the Tribunal for appointment. Such request must be in writing and served on the Secretary, accompanied by the prescribed fee.
   
 
   

Q15

Can a party appoint a representative to act for him/her in the proceedings?

   

Yes. A party may appoint another person to act as his/her agent in the proceedings. The agent may be a legal practitioner or any other person. Such appointment must be made in writing. A notice of appointment must be served on the Secretary, accompanied by the prescribed fee.

At a hearing before the Tribunal, a party must be represented by a counsel or solicitor, or by any other person allowed by the Tribunal to appear on behalf of the party. A party who is a natural person may appear in person at a hearing.

   
 
   

Q16

What language(s) can be used in the proceedings?

   

The Tribunal may decide to use either Chinese or English or both of the official languages in any proceedings as it considers appropriate. In determining on the choice of official language, the paramount consideration for the Tribunal is the just, expeditious and economical conduct of the proceedings, having regard to all the circumstances of the case. Factors which will be taken into consideration may include the language ability of the parties and their representatives and the wishes of the parties.

A party or witness may use either or both of the official languages. They may also address the Tribunal or testify in any language.

A counsel or solicitor in any proceedings may use either or both of the official languages.

Documents served on the Tribunal or any other party or person for the purpose of any proceedings may be in either official language. If a document served is not in one of the official languages, the Tribunal may make an order for a translation of the document into one or both of the official languages within a specified period.

   
 
   

Q17

Can a non-party have access to the documents served by parties in any proceedings?

   

Non-parties may, on payment of the prescribed fee, search for, inspect and obtain a copy of an application served on the Secretary in respect of any proceedings, and/or a copy of a written final decision made by the Tribunal.

   
 
   

Q18

I made an application to the Tribunal before the commencement date of the Copyright Tribunal Rules (Cap.528D). Is my application subject to the Rules?

   

The Rules have come into operation since 1 May 2017. Any proceedings commenced and pending immediately before 1 May 2017 must continue in accordance with the Rules.

 

 
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Last revision date: 27 April, 2017