Exception to Copyright Infringement: Fair Dealing (From the Perspective of Artistic Works)

In general, reproduction of an artistic work without the permission of the copyright owner amounts to copyright infringement.

An exception to this under the laws of Hong Kong is fair dealing of the artistic work. Under the Copyright Ordinance, laws of Hong Kong, fair dealing involves 2 elements:

(1) the dealing of the work must be fair; and

(2) the purpose of the dealing of the work must be confined to 7 prescribed purposes:

1. Research
2. Private study
3. Criticism
4. Review
5. Comment
6. News reporting education
7. Public administration

Below is further elaboration of some of the purposes for the exception to apply to the use of an artistic work:

Research and Private Study

Under this exception, copies of an artistic work can only be made under very limited circumstances and only apply to situations when the research and study are for non-commercial purposes.

This exception does not apply if someone intends to publish an image of an artistic work as part of his research, or if his research will lead to the artistic work being distributed, say among other students in a school or university.

Criticism and Review

This exception may apply when an artistic work is reproduced for the purposes of criticism and review on the condition that the artistic work is made available to the public already.

For example, it has been publicly exhibited. There must be sufficient acknowledgment of the  artist's name, the title or a description of the artistic work, and the use for the exception to apply, unless it is impossible. 

News Reporting Education

Such exception applies when an artistic work has been reproduced, whether in print, broadcast or online, for the specific purpose of reporting on events of national or political importance.  

The use of the artistic work has to deal with a contemporary issue. Sufficient acknowledgment of the artist is generally required unless the artistic work was used in a broadcast. This exception does not apply to photographs.

Any act which is carried out for other purposes cannot be fair dealing, including acts carried out for private use or charity.

 

Factors of Consideration as to Whether the Dealing is Fair or Not

In determining whether any dealing with a copyright work is fair, the HK court will consider the following factors:

1. the purpose and nature of the dealing;
2. the nature of the work;
3. the amount and substantiality of the portion being dealt with in relation to the original work as a whole; and
4. the effect of the dealing on the potential market or value of the work.

The primary consideration for the exception of fair dealing is that the dealing should not:

1. conflict with a normal exploitation of the work by the copyright owner; and
2. unreasonably prejudice the legitimate interests of the copyright owner.

 

For Hong Kong Art Law Services, please contact CHOW & CHEUNG [Tel: +852 2856 3799 or Email: cac@ccsn.hk]

www.ccsn.hk

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