Background

1.      In December 2001, the Task Force for Reprographic Rights Licensing established under the Heads of Universities Committee (HUCOM) sought the assistance of all staff of all HUCOM institutions in drafting a position paper concerning the making of photocopies for private study, research and instruction purposes. A Position Paper on "Permitted Acts for Educational Purposes under the Copyright Ordinance", which had previously been endorsed by HUCOM, was subsequently released to all staff and students of all HUCOM institutions for consultation. The Position Paper was submitted to the Government and Legco in December 2001 and January 2002 respectively. The Task Force also attended a special Legco meeting on behalf of all HUCOM institutions on 10 January 2002 on the subject and presented its views to Legco members.

2.      In essence, the Task Force advocate the following:

(a)    Criminal sanction shall be lifted for making copies of printed materials for private study, research and instruction purposes.

(b)   The existing restrictive UK model of "fair dealing" shall be replaced with the open-ended US model of "fair use", which is more flexible.

(c)    Working groups with broad representation shall be formed with a short-term goal of formulating guidelines relating to the use of copyrighted works for private study, research and instruction purposes. In the longer term, the working groups shall monitor the ever changing digital environment and the new information technologies, with a view to advising the Government on matters relating to copyright law, fair dealing and collective licensing.

Progress

3.      The Task Force is glad to report that most, if not all, of its recommendations have been well received by the Government and the Legco. While the new Copyright Ordinance is scheduled for enactment in July 2003, the Government has indicated unofficially that the new Ordinance will lift the criminal sanction for making copies of printed materials. Copying of computer programs, movies, television dramas and musical recordings remains a criminal offence, punishable by law.

4.      The Government has further indicated that instead of confining fair dealing exemptions to private study and research, criticism, review and news reporting, it would consider extending the scope of the fair dealing exemptions along the line of the open-ended approach adopted by the US. This will allow, say, certain special acts for teaching or personal use which fall outside the ambit of the exemptions in the current law to be treated as fair dealing.

The Guidelines

5.      A working group chaired by the Director of Intellectual Property, consisting of representatives from the Commerce, Industry and Technology Bureau, Education Department and members representing local and international publishers, local newspapers as well as users in schools and universities was established in May 2002 to develop Guidelines for the photocopying of printed works for educational purposes under the Copyright Ordinance. The Guidelines enable teaching staff of educational establishments, including universities and schools, to decide to what extent and under what circumstances they can make multiple copies of printed materials, and distribute the copies to their students during class. The Task Force, the JULAC (Joint University Libraries Advisory Committee) and the Hong Kong Library Association are among the members of the Working Group.

6.      The Working Group met seven times, from June to September 2002. The first set of Guidelines is ready for implementation, with effect from 30 September 2002.

7.      Under this set of Guidelines, teaching staff in universities, secondary schools and primary schools can make multiple copies of a certain portion of a copyrighted work for instruction purposes. In particular:

(a)    Multiple copies of a work may be made by or on behalf of a teacher giving a course. [Clause (E1)]

(b)   Copies made under these Guidelines are for the purpose of distribution to students for teaching, discussion or classroom use. Students may retain the copies for subsequent reference. [Clause (E2)]

(c)    The number of copies made should not exceed one copy per student in a course. [Clause (E4)]

Please refer to the Guidelines for further details.

8.      Teaching staff are entitled to making copies only under a set of stringent conditions. Most important among these conditions are:

(a)    Spontaneity [Clause D(4)]

(b)   Brevity [Clause E(6)]

(c)    Cumulative Effect [Clause E(7)]

Please refer to the Guidelines for further details.

9.      The final Guidelines are the results of seven rounds of discussion which involved compromise on the part of both the copyright owners and users.The Guidelines give users extra flexibility and rights that were hitherto unavailable under the current Copyright Ordinance. In particular, this is the first time in Hong Kong that allowance is made for multiple copying.

10.  As the Guidelines are completely new to Hong Kong, there will probably be reviews and amendments in the future. Please send any comments and suggestions you may have to the Task Force by email to Patrick Kwong, the CityU representative on the Task Force. (uppkwong@cityu.edu.hk).

11.  "Newspaper articles" and "current news articles" are missing from the Guideline becasue the Task Force has not been successful in coming to an agreement with the Hong Kong Copyright Association (HKCLA), which represents 12 Hong Kong newspapers.

The Task Force wishes to let users have unlimited instances of making multiple copies of a portion of current news periodicals and newspapers, and current news sections of other periodicals.

HKCLA, however, will only agree to users making no more than 15 articles from the same newspaper title for one course in any one academic year.

The Task Force is planning to conduct a survey to ascertain the level of copying of newspaper articles and current news articles by our teaching staff and to further discuss the issue with HKCLA with a view to arriving at a mutually agreeable decision.

12.  The present Guidelines apply to printed works only. Guidelines for copying of works in other formats, e.g. works in digital format, will be formulated separately.

The Guidelines can be downloaded from the following links:
Guidelines in English (PDF version)
Guidelines in Chinese (PDF version)

The Way Forward

13.  Although the Guidelines for Classroom Copying have been established, they fall short of clarifying the meaning of another more important expression in the Copyright Ordinance: "Fair Dealing". It has always been the most important goal of the Task Force to push for greater flexibility in the interpretation of "Fair Dealing". If the efforts of the Task Force bear fruit, then all teaching and administrative staff as well as students of all HUCOM institutions will be able to make single copies of a permissible portion of copyrighted materials for private study and research without having to seek prior consent of the copyright owners or pay licence fees. In essence, the Task Force would prefer that the Government adopts the US-style open-ended "fair use" system, rather than the more restrictive UK-style "fair dealing" system.

The Task force shall continue to request the Government to form a working group to set up clear guidelines for "Fair Dealing".

14.  Once all guidelines mentioned above are implemented, users will have to purchase licences from licensing societies for making copies, multiple or single, beyond the limit set by the guidelines. Course packs are prime candidates for copyright licensing. The HUCOM Task Force will negotiate with licensing bodies in Hong Kong on behalf of all HUCOM institutions in due course.

Please direct all your comments and enquiries to Patrick Kwong, CityU representative on and Convernor of the HUCOM Task Force for Reprographic Rights Licensing, Email: uppkwong@cityu.edu.hk.