Let’s Talk About : Copyrights, Trademark & Patents

• Q: What is the definition of intellectual property?
  • A: General speaking, IP refers to the creations of the mind, invention, artistic works, designs, symbols, names and images. It refers generally to a group of separate intangible property rights which are protected by law, including copyrights, trademark, patents, and designs.
• Q: What are creative industries?
  • A: Creative industries are knowledge-intensive industries that particularly rely on creativity and talent, such as advertising, design, publishing, information technology services, digital entertainment, art industries etc. Our creative industries only can survive with well copyright protection. Piracy is the most detrimental factor to Hong Kong’s creative industries.
• Q: How many aspects does an idea contribute to?
  • A: It depends. A fresh idea can be concurrently applied to different creative industries. For instance, a registered comic can be contributed to the area of movies, computer games software, or for further development.
• Q: Is an idea a kind of intellectual property?
  • A: An idea will not be included. Yet, if you present and show your idea in a tangible form, your idea will be protected.
• Q: Are all ideas protected?
  • A: Not all ideas, creations, or inventions are being protected, e.g. operation and treatment for animals and human. Yet, if a medicine is invented by you, patent protection can be applied.
• Q: How are the copyrights generated?
  • A: By recording your idea in the form of writing, video recording, audio, drawing or photograph, the copyrights of the recording of your ideas can be protected.
• Q: Is it necessary to register for the copyright?
  • A: No. At the time when your work is completed, copyright will be generated naturally. The symbol “©” needs to be added to your work, as some countries required; yet it is unnecessary for the World Trade Organization (WTO) members to do so.
• Q: What kinds of works are under the copyrights protection in Hong Kong?
  • A: There are many types of works being protected, like library work, dramatic work, musical work, graphic works, sculpture works, photographs, computer software, sound recordings, films, broadcast, cable programs, etc
• Q: How long does the copyright last?
  • A: Copyright does not last forever. For the literacy, dramatic, musical, or artistic works, their copyrights last for 50 years from the date of the author’s death. Copyrights, as other property, can be inherited after the date of the author’s death.
• Q: Are both good and bad works covered by the copyrights?
  • A: Yes. All original works are covered by the copyrights regardless of the quality of the work.
• Q: How does Intellectual Property Department define the owner of the property for job purpose?
  • A: If the work is used for your job duty related purpose, the owner of your work’s copyright will be your employer. For example, if the full time teachers who are employed at a school ABC publish teaching materials, the ABC school (employer) will own the copyrights of the teaching materials. The physical place where you did your work is not relevant to the definition. While students are not employed by the school, students will own their copyrights of the teaching materials
• Q: May you tell me more about the Hong Kong Customs and Excise Department?
  • A: The Hong Kong Customs and Excise Department who is an enforcement agency of copyright laws is in charge of the illegal aspect of intellectual property rights infringement. It examines all associated complaints and has strong powers over search and seizure. It collaborates with the owners of the trademark and copyright to fight infringement of intellectual property rights.
• Q: Is pirating a criminal offense?
  • A: Yes. Any person who manufactures and sells equipment for copyright infringement (e.g. the supplier) will also be charged for crime. Those who are under 18 years old will also be charged for crime .The maximum penalty is HK$50,000 fine for each pirated copy, and the maximum jail sentence is four years.
• Q: What is the meaning of second infringement?
  • A: Secondary infringement is when infringing works are imported into Hong Kong on purpose, and copies of which are used for sale or distribution.
• Q: How does the patent protect the creator’s inventions?
  • A: As a patent owner, you can make use of your rights granted by the patent, to stop others from making, using, selling, or importing your patented creations, in an attempt to protect your investment.
• Q: What is the meaning of patent?
  • A: Patent is granted for an invention, with the meaning of protecting new technology and inventions, gives the inventor or its subsequent owners the exclusive right to make and use the invention or put it on the market. The inventions must be new, inventive and susceptible of industrial application. It allows the inventor to exploit the exclusive right associated with the particular invention within a specified time limit, in an attempt to encourage the development of new technology. With all these rights, the inventor still has to reveal his invention to the public through patents registry.
• Q: What is the meaning of trademark?
  • A: Trademark is used to promote and distinguish the goods and services of the trademark owner, and allow people distinguishing his goods and services from other traders. It is also visually noticeable and can be represented graphically e.g. drawings and descriptions of word. For example, trademark may consists of words, personal names, letters, numerals, figurative elements or combinations of colors, 3 dimensional shapes. Words which straightly describe or praise goods or services cannot be registered as a trademark.
• Q: What rights do the owner of trademark own?
  • A: The owner of a trademark has right to forbid the third party from using his trademark or a trademark similar to his trademark registered related to the goods or services without his permission.
• Q: What is the territorial limitation of trademark registration?
  • A: Trademark registered related to the goods or services in Hong Kong can enjoy protection in Hong Kong only. To enjoy protection overseas, registration is needed to be done in those countries separately.
• Q: What is the meaning of design?
  • A: Designs, with the meaning of any new shapes, configuration patterns or ornaments applied to an article by an industrial process, can be protected by registration. For example, the appearances of fabric patterns, watches, jewelry, toys and mobile phones, etc.
• Q: When should I apply for design registration, before or after the publication of my design?
  • A: Merely new designs can be registered. It is a must for you to keep your design undisclosed until filing the application for registration. Any disclosure or publishing of your design before filing your application will invalid your registration even if it is promised.
• Q: Can I disclose my design to others before registration?
  • A: Yes, but you need to pay more attention and ask them to keep secret. If the one who reads your design betrays you, your design will be stolen. Professional advice may need to be asked if you face any disclose of your design which is not made by you or under your will.

• Q: Will unauthorized downloading from and distributing to the Internet infringe the copyright of the digital works?
  • A: Yes. Unauthorized downloading of music and movies from the Internet is an infringing act, leading the loss to the owner of the copyright, and unauthorized online distribution of songs, movies or others is also an infringing act, like illegal downloading from the Internet.
• Q: Will it infringe copyright if we use other photos as non-sale (non-commercial) purpose?
  • A: Maybe. Copying or uploading copyrighted photos or other work to the Internet for public access without his or her consent will be an infringing act.
• Q: Will unauthorized copying of movies infringe the copyright?
  • A: If you use the illegal copying of movies for commercial or sale purpose, it is a criminal offence and you will be prosecuted. If you use the illegal copying of movies for personal purpose, it is a civil infringement and you will be asked for compensation through civil proceedings by copyright owners.
• Q: What is details of Anti-Internet Piracy Team in Hong Kong?
  • A: Anti-Internet Piracy Team is set by the Hong Kong Customs and Excise Department in order to detect and prevent infringing activities on the Internet, e.g. the crime committed from illegal uploading of songs or movies. A well equipped computer forensic laboratory is run for conducting forensic computing and analyzing on the digital evidence gathered from the Internet and other cybercrime cases.
• Q: What can an ordinary human do for showing support to intellectual property rights?
  • A: Everyone should pay special attention to the way their kids use the computer and remind them to respect intellectual property rights while using the Internet. Infringing upon the others’ rights, whether or not unintentionally, will engage into harsh consequences.
• Q: Will the students break the law if they photocopy the textbook for saving money?
  • A: Yes. They breaks the law.
• Q: Will the teachers break the law if they demonstrate audio and video recordings for education purpose?
  • A: For education purpose, and without prejudice to the copyright owner’s rights and there is no existing licensing scheme for the recordings, educators can carry out partial audio and video recording in schools. Yet, all those audio and video recording in schools should not be used for benefit purpose.
• Q: Is bootleg video recording breaks the law?
  • A: Yes. Any person who, without authority or reasonable excuse, takes video recording equipment into a cinema, theatre, or concert hall commits crime. For the aim of suppressing bootleg video recording in places of public environment, unauthorized persons are not allowed to bring in any video recording equipment. For example, digital cameras which can be used for taking photos of moving pictures are not allowed. Yet, cameras which can only be used only for photos taking of static images are allowed.

• Q: Do we need to buy a set of genuine software for each computer if we have a large number of computers?
  • A: Instead of buying one set of software for one computer, you can buy an appropriate corporate client software license from the software company for your computers stated in the contract.
• Q: If my worker uses pirated software, do I need to bear any responsibility in this case?
  • A: Yes. If the employers know and agree to the installation of the pirated software, they may also be prosecuted.
• Q: Is it illegal for the shopkeeper of the photocopy-shops photocopying textbooks to others?
  • A: Yes. Photocopyshops making photocopies of books without obtaining the copyright owners’ permission may also be charged. The maximum penalty is $ 50,000 fine for each pirated copy, and the maximum jail sentence is four years.
• Q: If the author of the book is death for over 60 years, can I copy his book?
  • A: Yes. Copyright protection of literary, artistic, dramatic, and musical works lasts until 50 years after the creator of the work dies. Yet, among those 50 years, photocopying without the permission of the copyright’s heir also composes an infringement.
• Q: What is the exemption of photocopying?
  • A: Registered kindergartens, primary schools and secondary schools are allowed to make a restricted quantity of newspapers’ photocopies for instruction purpose with no price. Related photocopying license (except electronic, digital, internet or intranet) can be applied by the business organizations referring to their scale of staff and quantity of copies.
• Q: If my work has little difference from the registered work, do I commit copyright infringement?
  • A: It depends. The judge may still believe that you copied the design with reasons, if those two designs are substantially the same.
• Q: Will it infringe copyright for changing a design of other from 2 dimensional into 3 dimensional?
  • A: Regardless of transforming a design from 2D into 3D, or from 3D to 2D, such process will be regarded as copyright infringements.
• Q: How do the law define pirated goods?
  • A: For the product provided at a relatively low price compared to the normal price, you may be more aware of those goods, as they have higher chance of being pirated goods. The purchaser can check the goods with the owner of trademark.
• Q: Are piracy activities criminal offenses?
  • A: Yes. You may also be charged for producing or possessing infringing articles for trade or business purpose, or for import or export.
• Q: Will the youngsters selling pirated goods be subject to prosecution?
  • A: Even under 18, the one who sells pirated goods will commit criminal liability, and will be subject to prosecution.
• Q: Who is the owner of copyright for the works created during a competition?
  • A: Some organizers of the competitions will own the copyrights of all entries, stated in the guideline of the competition. You need to make sure the terms of the guideline before joining the competition.
• Q: What do “TM”, ©and ® mean?
  • A: “TM” means trademarks, allowing people to use the sign without registration. © means “All rights reserved. No reproduction allowed”, applying to any copyright works, like records, software, books and other publications. For ®, it means registered trademarks, and you will be against the law if you use the sign ○R for an unregistered trademark.
• Q: How can I get my work registered?
  • A: You need to pay the registration fee and queue up for the application, and download related information and application form from IPD’s website www.ipd.gov.hk, and complete it and file the application.
• Q: How can I check whether or not my work is similar to others?
  • A: You may go to the website: http://ipsearch.ipd.gov.hk/ to check the registered trademarks, patents and designs, even the ones at the application stage. If your design is similar to the others, you may need to create a new one.
• Q: Why do I need to register a trademark?
  • A: By registering a trademark, you will be given an exclusive right to use the registered trademark related to goods and services. If anyone uses your trademark without seeking your permission, you can then take legal action against their act. Or else, it is difficult for you to prove that you are the trademark’s owner.
• Q: What is “No Fakes” logo?
  • A: “No Fakes” logo was launched by IPD, and gives you confidence that the shops with the logo will not sell any counterfeit goods.
• Q: What is the responsibility of Intellectual Property Department and Hong Kong Customs and Excise Department for anti-piracy respectively?
  • A: The Intellectual Property Department (IPD) is in charge of registering patents, trademarks and designs, and assisting in formulating policies and law. The Hong Kong Customs and Excise Department is in charge of the investigations and prosecutions against infringers of intellectual property rights.
• Q: Does invention rely on copying?
  • A: No. Although creating and inventing is not a piece of cake, you may need to be cautious to the surrounding things, and make good use of your imagination, in order to be an inventor. E.g. light bulbs will not be invented if everyone just copies the design of candles.