The Copyright (Amendment) Ordinance 2020 ("Amendment Ordinance") was enacted and came into effect on 26 June 2020. It aims to enhance the copyright exceptions in the Copyright Ordinance (Cap. 528) ("Copyright Ordinance") relating to persons with a print disability, and introduce new permitted acts allowing cross-border exchange of accessible copies by specified bodies with authorized entities in other jurisdictions, in order to bring the existing relevant copyright exceptions into line with the standards under the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired, or Otherwise Print Disabled ("Marrakesh Treaty").

• Before the Copyright Ordinance was amended, a person with a print disability includes a person who is —

  1. blind;
  2. visually impaired to the extent that his visual function cannot be improved by the use of corrective lenses (such as glasses) to a level that would normally be acceptable for reading without a special level or kind of light;
  3. unable, through physical disability, to hold or manipulate a book; or
  4. unable, through physical disability, to focus or move his eyes to the extent that would normally be acceptable for reading.

  In addition to the above-mentioned persons, the Amendment Ordinance stipulates that a person with a print disability also covers one who —

  5. has a perceptual or reading disability (including dyslexia) which cannot be improved to give the person visual function substantially equivalent to that of a person who has no such disability, such that the person is unable to read to substantially the same degree as a person who has no such disability.

An "accessible copy" of a copyright work refers to a specially adapted version of the copyright work which provides improved access to the work for a person with a print disability. An accessible copy may be produced in forms including Braille, large-print, electronic version, sound recording or any other specialized format, and may also include facilities for navigating around the version of the copyright work such as screen reader software and magnification software.

Moreover, when making an "accessible copy", it should be ensured that such copy does not —

• include changes which are not necessary to overcome problems caused by a print disability; or
• subject the copyright work to derogatory treatment, which distorts or mutilates the work or is otherwise prejudicial to the honour or reputation of its author.

Under the Amendment Ordinance, a "specified body" which can use the exceptions includes -

1. a Government school;
2. a school exempted from tax under section 88 of the Inland Revenue Ordinance (Cap.112);
3. a school receiving direct recurrent subvention from the Government; or
4. an organization that is not established or conducted for profit, and has a main object or a main function that is charitable or otherwise concerned with the advancement of welfare for persons with a print disability.

The Amendment Ordinance does not prescribe any procedure for application, registration or verification of "specified bodies". Organizations concerned should refer to the definition of "specified bodies" set out above to assess whether they may use the exceptions.

If the social enterprise is not established or conducted for profit, and has a main object or a main function that is charitable or otherwise concerned with the advancement of welfare for persons with a print disability, it falls under one of the definitions of a "specified body" under the Amendment Ordinance and may therefore use the copyright exceptions.

Pursuant to section 40B of the Copyright Ordinance and provided that the specified conditions are fulfilled, if a person with a print disability possesses or otherwise has lawful access to a master copy*, and the master copy is not accessible to the person because of the disability, the person, or somebody on behalf of the person, may make an accessible copy of the master copy for the person’s personal use without infringing copyright.

The relevant specified conditions are as follows -

1. the master copy possessed by the person with a print disability (or specified body – see "A7" below), or to which the person (or specified body – see "A7" below) has lawful access to, is a genuine copy;

2. the master copy does not include a sound recording that comprises only of:

   • a performance of a musical work or a dramatic work, or
   • a performance of music in which words are spoken, or are sung, incidentally to or in association with the music (e.g. a CD of a singer singing pop songs);
3. if the relevant master copy is a musical or dramatic work, the making of an accessible copy does not involve recording a performance of the work;
4. before the making of the accessible copy, the maker of the copy (or specified body – see "A7" below) has made reasonable enquiries and is satisfied that no copies of the relevant work in a form that is accessible to the person with a print disability can be obtained at a reasonable commercial price; and
5. anyone who makes or supplies an accessible copy on behalf of the person with a print disability (or specified body – see "A7" below) may charge for the making and supplying of the accessible copy, but the sum charged must not exceed the cost incurred in making or supplying that copy.

* Master copy means a copy of a literary, dramatic, musical or artistic work (or the audio form of such work, such as audiobooks).

Specified bodies may do the following acts without infringing copyright -

1. Make and supply accessible copies to persons with a print disability (Section 40C of the Copyright Ordinance)

   Provided that the specified conditions are fulfilled, if a specified body possesses or otherwise has lawful access to a master copy* that has been published or otherwise made publicly available, and the master copy is not accessible to persons with a print disability, a specified body may make and supply accessible copies of the master copy to those persons for their personal use without infringing copyright.

   Provided that the specified conditions are fulfilled, a specified body may also make further accessible copies from the accessible copy made pursuant to the requirements of the preceding paragraph for persons with a print disability for their personal use. For example, if the relevant master copy used to make the first accessible copy was obtained from a public library and has been returned since then, a specified body does not need to obtain the master copy again (e.g. by borrowing the relevant master copy from the library again) for making further accessible copies thereafter.

   The above-mentioned specified conditions are as follows -

   Apart from fulfilling conditions (a) to (e) set out in "A6" above, a specified body must:

   1. within a reasonable time before or after making or supplying the accessible copies to persons with a print disability,

      • notify the relevant copyright owner of such making or supplying (this condition is not applicable if the identity and contact details of the relevant copyright owner cannot be ascertained after making reasonable enquiries); and

   2. after making or supplying the accessible copy,

      • make a record of such making or supplying as soon as practicable;
      • retain such record for at least 3 years; and
      • allow the relevant copyright owner, on giving reasonable notice, to upect and make copies of the record at any reasonable time.

      Please refer to section 40E(2) of the Copyright Ordinance for the information that needs to be included in the record.

   * Master copy means a copy of a literary, dramatic, musical or artistic work (or the audio form of such work, such as audiobooks).

2. Handle intermediate copies of accessible copies (Section 40D of the Copyright Ordinance)

   In relation to an intermediate copy which is necessarily created during the production of the accessible copies by a specified body, the specified body may also possess, lend or transfer the intermediate copy to another specified body which is eligible to make accessible copies provided that the following specified conditions are fulfilled:

   • the specified body may only possess the intermediate copy for the purpose of producing further accessible copies;
   • if a sum is charged for lending or transferring an intermediate copy, the sum charged must not exceed the cost incurred in lending or transferring the copy;
   • the specified body must destroy the intermediate copy within 3 months when it is no longer required to possess the copy; and
   • the specified body must within a reasonable time before or after lending or transferring the intermediate copy, notify the relevant copyright owner of so doing and make a record.

   Please refer to section 40E(4) of the Copyright Ordinance for the information that needs to be included in the record.

The Amendment Ordinance provides that "supply", in relation to an accessible copy, includes "making available by wire or wireless means" and "distribute" such accessible copy. In general,

• "making available by wire or wireless means" means making available the relevant copy by such means, in such a way that the persons with a print disability may access it from a place and time chosen by the person, for example, to make the copy available through the Internet.
• "distribute" means making available an original copyright work or its copy to the public through a sale or transfer of ownership and includes physical or non-physical versions.

The Copyright Ordinance does not define "personal use" by persons with a print disability. In general, "personal use" can be construed as the personal use by persons with a print disability, but not for any other persons’ needs. "Personal use" is not confined to domestic use only.

The Copyright Ordinance does not define "making reasonable enquiries" and "a reasonable commercial price". Copyright exceptions involve different types of copyright works, and whether enquiries made are "reasonable" and whether specially adapted copies can be obtained at "a reasonable commercial price" in relation to an individual piece of copyright work would depend on the circumstances of each case (e.g. some copyright works were published long time ago, or that additional time is needed for enquiry if overseas copyright owners are involved).

Any selling or letting for hire of an accessible copy (otherwise than by an individual or organization which makes or supplies accessible copies for persons with print disability charging a sum not exceeding the cost incurred in making and supplying the copies) is illegal and will be treated as selling or letting for hire of an infringing copy of a copyright work.

The Amendment Ordinance introduces certain new permitted acts (with relevant conditions) allowing specified bodies to perform cross-border exchange of accessible copies of certain copyright works with authorized entities in other jurisdictions outside Hong Kong without infringing copyright.

Under the Amendment Ordinance, an "authorized entity" means a body that is outside Hong Kong, and

1. is in a jurisdiction that is a member of the World Trade Organization or a contracting party to the Marrakesh Treaty; and
2. is not established or conducted for profit and has a main object or main function that is charitable, or otherwise concerned with the advancement of welfare for persons with a print disability.

Pursuant to the new section 40CA of the Copyright Ordinance and provided that the specified conditions are fulfilled, if a specified body possesses, or otherwise has lawful access to a master copy* that has been published or otherwise made publicly available, and the master copy is not accessible to persons with a print disability, a specified body may do the following acts for the purpose of export or supply accessible copies to an authorized entity outside Hong Kong without infringing copyright -

• makes an accessible copy of the master copy, or
• makes another accessible copy from the accessible copy made pursuant to section 40C of the Copyright Ordinance (See "A7" above).

The relevant specified conditions are as follows -

1. the master copy possessed by the specified body, or to which it has lawful access to, is a genuine copy;

2. the master copy does not include a sound recording that comprises only of:

   • a performance of a musical work or a dramatic work, or
   • a performance of music in which words are spoken, or are sung, incidentally to or in association with the music (e.g. a CD of a singer singing pop songs);
3. if the relevant master copy is a musical or dramatic work, the making of an accessible copy does not involve recording a performance of the work;
4. the specified body has obtained the authorized entity’s confirmation that no copy of the relevant work in a form that is accessible to persons with a print disability can be obtained at a reasonable commercial price in the entity’s jurisdiction;
5. the specified body does not know (and does not have reasonable grounds to believe) that the accessible copy would be used otherwise than by persons with a print disability for their personal use. For example, the specified body may seek a confirmation from the authorized entity that the accessible copy would only be provided to persons with a print disability for their personal use;
6. within a reasonable time before or after making, exporting or supplying the accessible copy, the specified body notifies the relevant copyright owner of such making, exporting or supplying (this condition is not applicable if the identity and contact details of the relevant copyright owner cannot be ascertained after making reasonable enquiries);
7. if the specified body charges for making, exporting or supplying an accessible copy, the sum charged must not exceed the cost incurred in making, exporting or supplying that accessible copy; and

8. after exporting or supplying the accessible copy, a specified body must

   • make a record of such exporting or supplying as soon as practicable;
   • retain such record for at least 3 years; and

   • allow the relevant copyright owner, on giving reasonable notice, to inspect and make copies of the record at any reasonable time.

     Please refer to section 40E(2B) of the Copyright Ordinance for the information that needs to be included in the record.

   * Master copy means a copy of a literary, dramatic, musical or artistic work (or the audio form of such work, such as audiobooks).

Pursuant to the new section 40CB of the Copyright Ordinance and provided that the specified conditions are fulfilled, a specified body may for the purpose of supplying accessible copies of a literary, dramatic, musical or artistic work to persons with a print disability for their personal use, import or obtain an accessible copy from an authorized entity outside Hong Kong, possess the accessible copy, and make and supply further accessible copies from such accessible copy without infringing copyright.

The relevant specified conditions are as follows -

1. the accessible copies are only for the personal use of persons with a print disability;
2. such accessible copies do not record, or the making of such accessible copies would not involve recording a performance of a musical or dramatic work;
3. at the time of importing, obtaining or making an accessible copy, the specified body is satisfied, after making reasonable enquiries, that no copy of the relevant copyright work in a form that is accessible to persons with a print disability can be obtained at a reasonable commercial price;
4. if the specified body charges for importing, obtaining, making or supplying an accessible copy, the sum charged must not exceed the cost incurred in importing, obtaining, making or supplying the accessible copy; and

5. after importing or obtaining the accessible copy, a specified body must

   • make a record of such importing or obtainment as soon as practicable;
   • retain such record for at least 3 years; and
   • allow the relevant copyright owner, on giving reasonable notice, to inspect and make copies of the record at any reasonable time.
     
     Please refer to section 40E(2D) of the Copyright Ordinance for the information that needs to be included in the record.

   Persons with a print disability may also import or obtain through a specified body an accessible copy which suit their needs for their personal use.

Any selling or letting for hire of an accessible copy (otherwise than the charging of a sum not exceeding the cost incurred pursuant to the relevant permitted act) is illegal and will be treated as selling or letting for hire of an infringing copy of a copyright work.