Copyright Tribunal

Scope of the Copyright Tribunal

Scope of the Copyright Tribunal

 
 

The types of cases that the Copyright Tribunal has power to hear and determine are set out under section 173 and section 233 of the Copyright Ordinance.

(1) Licensing schemes ( sections 154 to 160 of the Copyright Ordinance )
(2) Licensing by licensing bodies ( sections 161 to 166 of the Copyright Ordinance )
(3) Determining the award to employees for using his/her work outside reasonable contemplation ( section 14 of the Copyright Ordinance )
(4) Obtaining Tribunal's consent on behalf of owners of right of reproduction of a performance or on behalf of the owner of the performers' rental right ( sections 213 & 213A of the Copyright Ordinance )
(5) Other applications
   
(1)

Licensing schemes ( sections 154 to 160 of the Copyright Ordinance )

The Tribunal can hear and determine matters relating to licensing schemes operated by licensing bodies which cover works of more than one author, and relate to licences for:-

     
  (a)

copying the work;

  (b) rental of copies of the work (e.g. a computer program, a sound recording, a film, etc.) to the public;
  (c)

performing, playing or showing the work in public;

  (d)

broadcasting the work or including it in a cable programme service;

  (e)

issuing or making available copies of the work to the public;

  (f)

making adaptations of the work; or

  (g)

any other act restricted by the copyright in the work.

     
 

Under the Copyright Ordinance, the terms “licensing scheme” and “licensing body” have the following meanings:-

     
   

A “licensing scheme” means a scheme setting out (i) the classes of case in which the operator of the scheme or his agent is willing to grant copyright licences; and (ii) the terms on which licences would be granted in those classes of case. For the above purpose a “scheme” includes anything in the nature of a scheme, whether described as a scheme or by any other name.

A “licensing body” means a society or other organisation whose main object is to negotiate or grant copyright licences either as owner or prospective owner of copyright or as his agent. Its objects should also include the granting of licences which cover works of more than one author. The “licensing body” may or may not be registered with the Registrar of Copyright Licensing Bodies under section 149 of the Copyright Ordinance. For details about the registered licensing bodies, please visit the website of the Intellectual Property Department at
www.ipd.gov.hk/eng/intellectual_property/copyright/copyright_licensing.htm .

     
  (a)

Disputes relating to licensing scheme in operation or licensing scheme proposed to be operated by a licensing body

If a licensing scheme is in operation and a dispute arises between the operator of the scheme and a person requiring a licence or an organisation representing such persons, the person or organisation may refer the scheme to the Tribunal. If reference was made to the Tribunal in respect of the terms of a licensing scheme which is proposed to be operated by a licensing body , the Tribunal will then have to decide first whether to entertain the reference. In both circumstances (either the licensing scheme is in operation or has not yet been in operation), after considering the matter, the Tribunal will either confirm or vary the scheme as the Tribunal may consider reasonable. Where the Tribunal has already made an order with respect to a proposed scheme or a scheme in operation, further reference on the same matter may still be made to the Tribunal. However, for such further reference, special leave (which means a special permission) of the Tribunal has to be sought first.

     
  (b)

Refusal of grant of license under a licensing scheme

The Tribunal also deals with application for an order from a person who claims, in a case covered by a licensing scheme , that the operator of the scheme has refused to grant him or procure the grant to him of a licence in accordance with the scheme, or has failed to do so within a reasonable time after being asked. A person may also apply to the Tribunal for an order by claiming, in a case excluded from a licensing scheme , that the operator of the scheme either (i) has refused to grant him a licence or has failed to do so within a reasonable time, and that in the circumstances it is unreasonable that a licence should not be granted; or (ii) proposes terms for a licence which are unreasonable. If the claim is well-founded, the Tribunal may declare that the applicant is entitled to a licence on such term as the Tribunal may determine to be applicable under the scheme or reasonable in the circumstances. If the Tribunal has made an order allowing the entitlement to licence, the operator of the scheme or the original applicant may apply to the Tribunal to review its order. However, to do so, special leave of the Tribunal may be required.

     
   
     
(2)

Licensing by licensing bodies ( sections 161 to 166 of the Copyright Ordinance )

The Tribunal can hear and determine matters relating to licences granted by a licensing body (but not under a licensing scheme ) and which cover works of more than one author, and the licences authorise:-

     
  (a)

copying the work;

  (b)

rental of copies of a works (e.g. a computer program, a sound recording, a film, etc.) to the public;

  (c)

performing, playing or showing the work in public;

  (d)

broadcasting the work or including it in a cable programme service;

  (e)

issuing or making available copies of the work to the public;

  (f)

making adaptations of the work; or

  (g)

any other act restricted by the copyright in the work.

     
 

A prospective licensee may refer to the Tribunal the terms on which a licensing body proposes to grant a licence. If the Tribunal decides to entertain the reference, after considering the terms of the proposed licence, it will either confirm or vary the terms as it may consider reasonable.

A licensee under a licence which is due to expire may apply to the Tribunal on the ground that it is unreasonable in the circumstances that the licence should cease to be in force. If the Tribunal finds that the application is well-founded, it shall make an order declaring that the licensee continues to be entitled to the benefit of the licence on such terms as the Tribunal may consider reasonable. Where an application has been made to the Tribunal under the above circumstances, the Tribunal may order the licensee to make interim payment of royalty. On the other hand, the Tribunal may make an order that pending the final determination of the reference or application, the licensing body shall not apply for any interlocutory injunction.

If the Tribunal has made an order on the reference, the licensing body or the person entitled to the benefit of the order may apply to the Tribunal to review its order. Before applying for a review, special leave of the Tribunal may be required.
     
   
     
(3) Determining the award to employees for using his/her work outside reasonable contemplation ( section 14 of the Copyright Ordinance )
     
  (a)

If certain copyright work is made by an employee; and

  (b)

the work is used by his employer or by someone with the employer's permission; and

  (c)

the work is used in a way that could not have been reasonably anticipated at the time of the making of the work,

     
 

the employer shall pay an award to the employee in respect of such use of the work. The Tribunal has the power to determine the amount of the award if it cannot be agreed on.

     
   
     
(4)

Obtaining Tribunal's consent on behalf of owners of right of reproduction of a performance or on behalf of the owner of the performers' rental right ( sections 213 & 213A of the Copyright Ordinance )

The Tribunal may, on the application of a person wishing to make a copy of a fixation of a performance, give consent in a case where the identity or whereabouts of the person entitled to the right of reproduction cannot be ascertained by reasonable inquiry.

Furthermore, on the application of a person wishing to rent a copy of a sound recording in which a performance is fixed, the Tribunal may give consent in a case where the identity or whereabouts of the person entitled to the rental right cannot be ascertained by reasonable inquiry.

     
   
     
(5) Other applications
     
  (a)

Applications for determination of equitable remuneration to persons entitled to restrain rental by virtue of commencement of section 10 of the Intellectual Property (World Trade Organisation Amendments) Ordinance 1996 ( paragraph 14(3) of Schedule 2 of the Copyright Ordinance ); and

  (b)

Applications for determination of compensation arising from contrary rights as a result of the commencement of the Copyright Ordinance ( paragraph 6 of Schedule 2 and paragraph 6 of Schedule 3 of the Copyright Ordinance ).

 

 
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Last revision date: 18 August, 2017