HONG KONG SAR, CHINA Law and Practice Contributed by: Angus Forsyth, Angus Forsyth & Co.
1. Art Law Framework 1.1 Relevant Authorities and Legislation The fundamental legislation applicable to art law is the Copyright Ordinance, which provides for the exclusive right of the owner to do the acts specified therein and prioritises the absolute entitlement of the author of a copyright work. Copyright protects the expression of an idea but not the idea itself. The rights conferred by the Copyright Ordinance expire 50 years after the end of the calendar year in which the work was first made or, if the work is made available to the public during that 50-year period, the copyright shall expire 50 years after the end of the calendar year in which the work was first made avail - able to the public. The authority implementing copyright regulation is the Copyright Tribunal, which has jurisdiction to hear and determine proceedings under and in respect of an employee award for his or her use of a copyright work outside the reasonable contemplation, reference to a licensing scheme of copyright, entitlement to a licence under the licensing scheme and in respect of acts infringing copyright. The Copyright (Amendment) Ordinance was enact - ed in May 2022 and introduced a technology-neu - tral “communication right” for copyright owners to address new methods of the transmission or distri- bution of copyright material, such as live streaming, non-downloadable video on demand, the provision of access to copyright works via hyperlinks and peer- to-peer file transfers. The Amendment Ordinance also clarifies and augments the use of the word “commu - nication” in relation to copyright materials. This Ordinance further expands new exemptions for parody, satire, caricature and pastiche, stating that fair dealing with a work for the purpose of parody, satire, caricature or pastiche does not infringe copy - right in the work. It provides an exemption for online service providers to take advantage of contemporary cache and hosting of data in copyright identity. Online service providers will also find safe harbour protec - tion where they have not received a financial benefit directly attributable to a copyright infringement, and
are able to avoid liability under the Copyright Ordi - nance through the implementation of a notice of alleged infringement and the taking down or disabling of access to alleged infringing materials upon receipt of notices of infringement. However, certain ques - tions in the community regarding possible copyright infringement through the use of artificial intelligence (AI) still remain unaddressed. The increasingly common method to identify a particu - lar provider of goods or services is to do this under the identification of a “brand”. Brands can be protected as registered trade marks in Hong Kong, which gives sufficient protection to all aspects of related artwork in a specific brand of a particular provider. Certain branding with specific artwork on the whole or part of a specific manufactured article can also be protected for the registered owner by the registration of a design right under the Registered Designs Ordinance, and may also be protected as an “artistic work” under the Copyright Ordinance. Purely intellectual property such as a patent in a com - puter program and a business method can be pro - tected under the Patents Ordinance, provided that the underlying invention relating to the program makes a technical contribution over and above that provided by the program or business method itself, such as an improvement in the working of the computer. The Copyright (Amendment) Ordinance 2022 intro - duced a broader range of fair dealing exceptions to copyright ownership, covering in particular the use of copyright works for parody, satire, caricature and pastiche, data caching by online service providers and media shifting where the version of the media format is made for private and domestic use. The Personal Data (Privacy) Commissioner pub - lished a Model Personal Data Protection Framework identifying the risks associated with AI in relation to guarding and warning against inadvertent disclosure of personal data through insufficient training or using poor-quality data in relation to use on an AI system. The consequence has been to enhance the level of AI governance within enterprises and the proper use of technology in aspects of application of the Personal
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