Prevention of Copyright Piracy Ordinance

by Provisional Legislative Council of Hong Kong

Layout 2

PREVENTION OF COPYRIGHT PIRACY ORDINANCE

CONTENTS

Section

Page

Preliminary
1.	Short title and commencement ............................................................................................................................................................................................................................................................................................................	A447
2.	Interpretation ............................................................................................................................................................................................................................................................................................................	A447
Licences to manufacture optical discs
3.	Licence required to manufacture optical discs ............................................................................................................................................................................................................................................................................................................	A449
4.	Prohibition on manufacturing at unlicensed premises ............................................................................................................................................................................................................................................................................................................	A449
5.	Application for and grant of licence ............................................................................................................................................................................................................................................................................................................	A449
6.	Form, duration and effect of licence ............................................................................................................................................................................................................................................................................................................	A451
7.	Amendment and renewal of licence ............................................................................................................................................................................................................................................................................................................	A451
8.	Transfer of licence ............................................................................................................................................................................................................................................................................................................	A453
9.	Display of licence ............................................................................................................................................................................................................................................................................................................	A453
10.	New information to be furnished ............................................................................................................................................................................................................................................................................................................	A453
11.	Refusal to grant or renew licence ............................................................................................................................................................................................................................................................................................................	A455
12.	Revocation of licence ............................................................................................................................................................................................................................................................................................................	A455
13.	Cancellation of licence ............................................................................................................................................................................................................................................................................................................	A457
14.	Appeals to Administrative Appeals Board ............................................................................................................................................................................................................................................................................................................	A457
Marking of optical discs
15.	Optical discs must be marked with manufacturer’s code ............................................................................................................................................................................................................................................................................................................	A457
16.	Marking standards ............................................................................................................................................................................................................................................................................................................	A457
Inspection and enforcement
17.	Power of authorized officers to inspect licensed premises, etc. ............................................................................................................................................................................................................................................................................................................	A459
18.	Power of authorized officers to enter and search, etc. ............................................................................................................................................................................................................................................................................................................	A461
19.	Authority to issue warrant for entry and search ............................................................................................................................................................................................................................................................................................................	A463
20.	Seized optical discs, etc., liable to forfeiture ............................................................................................................................................................................................................................................................................................................	A463
Offences and penalties
21.	Manufacturing optical discs without licence, etc. ............................................................................................................................................................................................................................................................................................................	A465
22.	Applying false manufacturer’s code, etc. ............................................................................................................................................................................................................................................................................................................	A467
23.	False and misleading statements ............................................................................................................................................................................................................................................................................................................	A467
24.	Obstruction of authorized officers ............................................................................................................................................................................................................................................................................................................	A467
25.	Offences related to disclosure of information ............................................................................................................................................................................................................................................................................................................	A469
26.	Liability of persons other than principal offender ............................................................................................................................................................................................................................................................................................................	A469
27.	Disposal of optical discs, etc., where a person is charged ............................................................................................................................................................................................................................................................................................................	A471
28.	Protection of informers ............................................................................................................................................................................................................................................................................................................	A471
29.	Time limit for prosecutions ............................................................................................................................................................................................................................................................................................................	A473
Miscellaneous
30.	Form of applications, etc. ............................................................................................................................................................................................................................................................................................................	A473
31.	Register ............................................................................................................................................................................................................................................................................................................	A473
32.	Appointment of authorized officers ............................................................................................................................................................................................................................................................................................................	A473
33.	Protection of the Commissioner, authorized officers and persons assisting them ............................................................................................................................................................................................................................................................................................................	A475
34.	Compensation for seizure, etc. ............................................................................................................................................................................................................................................................................................................	A475
35.	Aids in proof ............................................................................................................................................................................................................................................................................................................	A477
36.	Disclosure of information, inspection, release of samples, etc. ............................................................................................................................................................................................................................................................................................................	A479
37.	Multilateral co-operation ............................................................................................................................................................................................................................................................................................................	A479
38.	Regulations ............................................................................................................................................................................................................................................................................................................	A479
39.	Amendment of Schedules ............................................................................................................................................................................................................................................................................................................	A479
40.	Saving for other enactments ............................................................................................................................................................................................................................................................................................................	A479
Consequential and Related Amendments
Specification of Public Offices
41.	Schedule amended ............................................................................................................................................................................................................................................................................................................	A481
Customs and Excise Service Ordinance
42.	Ordinances referred to in sections 17 and 17A ............................................................................................................................................................................................................................................................................................................	A481
Administrative Appeals Board Ordinance
43.	Schedule amended ............................................................................................................................................................................................................................................................................................................	A481
Copyright Ordinance
44.	Section added ............................................................................................................................................................................................................................................................................................................
	120A.Time limit for prosecutions ............................................................................................................................................................................................................................................................................................................	A481
45.	Powers of investigating officers ............................................................................................................................................................................................................................................................................................................	A483
46.	Section substituted ............................................................................................................................................................................................................................................................................................................
	123.Authority to issue warrant for entry and search ............................................................................................................................................................................................................................................................................................................	A483

Schedule 1	Optical discs ............................................................................................................................................................................................................................................................................................................	A483
Schedule 2	Fees ............................................................................................................................................................................................................................................................................................................	A485

HONG KONG SPECIAL ADMINISTRATIVE REGION

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Ordiance No. 22 of 1998

An Ordinance to make further provision for the prevention of copyright piracy.

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Enacted by the Provisional Legislative Council.

Preliminary

1. Short title and commencement

(1) This Ordinance may be cited as the Prevention of Copyright Piracy Ordinance.

(2) This Ordinance shall come into operation on a day to be appointed by the Secretary for Trade and Industry by notice in the Gazette.

2. Interpretation

(1) In this Ordinance, unless the context otherwise requires—

“authorized officer” (獲授權人員) means a public officer authorized by the Commissioner under section 32;

“Commissioner” (關長) means the Commissioner of Customs and Excise and any Deputy or Assistant Commissioner of Customs and Excise;

“court” (法院) includes a magistrate;

“licence” (特許) means a licence granted under section 5;

“licensed premises” (獲批特許的處所), in relation to a licensee, means any premises specified in his licence in which optical discs are authorized to be manufactured;

“licensee” (特許持有人) means a person to whom a licence is granted, and includes any person to whom a licence is transferred in accordance with section 8;

“manufacturer’s code” (製造者代碼) means a manufacturer’s code assigned to a licensee under section 5(2)(a) or 8(3)(b);

“optical disc” (光碟) includes—

(a) any medium or device listed in Schedule 1; and

(b) any other medium or device on which data may be stored in digital form and read by means of a laser,

and, for greater certainty, includes any such medium or device manufactured for any purpose and whether or not any data readable by means of a laser has been stored on it;

“place” (地方) means any area on land or water and includes any building, structure or enclosure, whether moveable or not;

“register” (登記冊) means the register kept by the Commissioner under section 31.

(2) For the purpose of this Ordinance, a person manufactures optical discs in Hong Kong if he owns, directs, manages or otherwise has control of a business in Hong Kong which includes the manufacturing of optical discs in Hong Kong.

(3) All other words and expressions used in this Ordinance and defined in the Copyright Ordinance (92 of 1997) have the same meaning as in that Ordinance.

Licences to manufacture optical discs

3. Licence required to manufacture optical discs

(1) No person shall manufacture optical discs in Hong Kong unless he holds a valid licence.

(2) Subsection (1) does not apply—

(a) to an employee of a licensee who manufactures optical discs in the course of his employment; or

(b) to the manufacture of optical discs for a purpose prescribed by the regulations.

4. Prohibition on manufacturing at unlicensed premises

(1) No licensee shall manufacture optical discs in any place in Hong Kong other than a licensed premises.

(2) Subsection (1) does not apply to the manufacture of optical discs for a purpose prescribed by the regulations.

5. Application for and grant of licence

(1) The Commissioner may grant a licence to any person who makes an application for a licence in accordance with this Ordinance.

(2) In granting a licence, the Commissioner—

(a) shall assign to the licensee a manufacturers’ code;

(b) shall impose all of the conditions as may be published by him from time to time by notice in the Gazette for the purpose of this section; and

(c) may impose such other conditions as he thinks fit for—

(i) preventing the manufacture of infringing copies of copyright works;

(ii) protecting the rights of copyright owners and other persons to whom rights are conferred under the Copyright Ordinance (92 of 1997);

(iii) securing compliance by the licensee with any provisions of this Ordinance or the regulations;

(iv) securing compliance by the licensee with any conditions of the licence; and

(v) ensuring the effective administration of this Ordinance.

(3) A manufacturer’s code shall consist of—

(a) one or more letters or numbers;

(b) a mark, sign, symbol or device; or

(c) any combination of letters, numbers, marks, signs, symbols or devices,

as determined by the Commissioner.

(4) A notice published under subsection (2)(b) shall not be regarded as subsidiary legislation.

6. Form, duration and effect of licence

(1) Every licence shall be in a form determined by the Commissioner and shall be valid for such period, not exceeding 3 years, as is specified in the licence.

(2) Every licence shall authorize the person named therein to manufacture optical discs in the premises specified in the licence.

(3) The following matters shall be endorsed on a licence—

(a) any conditions imposed under section 5(2) or 8(3);

(b) the manufacturer’s code assigned to the licensee;

(c) any amendments made to the licence under section 7 or to any conditions endorsed on the licence under section 8(3); and

(d) any transfer of the licence approved under section 8.

7. Amendment and renewal of licence

(1) The Commissioner may amend or renew a licence upon application made by the licensee in accordance with this Ordinance.

(2) An application to amend or renew a licence must be made during such period as the Commissioner may specify.

(3) Sections 5 and 6 apply, with such modifications as the circumstances require, to the amendment or renewal of a licence under this section.

8. Transfer of licence

(1) A licensee may transfer his licence to another person if the Commissioner approves the transfer under subsection (2).

(2) The Commissioner may upon application made by a licensee in accordance with this Ordinance, showing cause to his satisfaction, approve the transfer of the licence to another person.

(3) In approving the transfer of a licence, the Commissioner may—

(a) amend any conditions endorsed on the licence or impose any new conditions as he thinks fit, including any conditions referred to in section 5(2)(b); and

(b) assign to the person to whom the licence is transferred a manufacturer’s code in substitution for the manufacturer’s code endorsed on the licence.

9. Display of licence

(1) Subject to subsection (2), a licensee shall cause his licence to be displayed at all times in a conspicuous location at the licensed premises.

(2) If there is more than one licensed premises, the licensee shall—

(a) cause the licence to be displayed at any of the licensed premises; and

(b) obtain a duplicate licence from the Commissioner for each other licensed premises and cause it to be displayed at all times in a conspicuous location at that licensed premises.

10. New information to be furnished

(1) A licensee shall notify the Commissioner of any change which occurs in relation to any particulars set out in—

(a) any application made by him under this Ordinance; or

(b) any notice previously given by him under this section.

(2) The licensee shall so notify the Commissioner not later than 30 days after the change takes effect.

(3) A notice under this section shall be given in such form and manner as the Commissioner may require.

11. Refusal to grant or renew licence

(1) The Commissioner may refuse to grant a licence, or to renew a licence, if he is satisfied that—

(a) the applicant for the licence or renewal, or a partnership or body corporate managed, owned or controlled by him, has been convicted of an offence under this Ordinance or the Copyright Ordinance (92 of 1997) or under any previous law of Hong Kong relating to copyright;

(b) an offence under this Ordinance or the Copyright Ordinance (92 of 1997) or under any previous law of Hong Kong relating to copyright has been committed in connection with any premises to which the application for the licence or renewal relates, whether or not any person has been convicted of that offence;

(c) the applicant has furnished to the Commissioner any false or misleading information in connection with any application made, or notice given, by him under this Ordinance; or

(d) the applicant is not, for any other reason satisfactory to the Commissioner, a fit and proper person to hold a licence.

(2) If the Commissioner refuses to grant or renew a licence, he shall notify the applicant in writing of the grounds for the refusal within 14 days after his decision.

12. Revocation of licence

(1) The Commissioner may revoke a licence on any of the grounds for which he may refuse to grant or renew a licence under section 11(1).

(2) In addition, the Commissioner may revoke a licence if he is satisfied that the licensee—

(a) has ceased to manufacture optical discs in Hong Kong;

(b) has ceased to manufacture optical discs at any licensed premises; or

(c) is in breach of, or is unable to comply with, any conditions endorsed on the licence.

(3) The Commissioner shall not revoke a licence unless he first—

(a) notifies the licensee in writing of his intention and the grounds upon which he proposes to revoke the licence; and

(b) permits the licensee to make representations to him in writing.

(4) Representations under subsection (3)(b) shall be made within 14 days from the date of the notification under subsection (3)(a) or within such greater period as is specified in the notice.

(5) If the Commissioner revokes a licence, he shall notify the licensee in writing of the grounds for the revocation within 14 days after his decision.

(6) For the purpose of subsection (1)—

(a) any reference in section 11(1) to an applicant shall be construed as a reference to a licensee; and

(b) the reference in section 11(1)(b) to the application for the licence or renewal shall be construed as a reference to the licence.

13. Cancellation of licence

The Commissioner may cancel a licence upon application made by the licensee in accordance with this Ordinance.

14. Appeals to Administrative Appeals Board

Any person who is aggrieved by a decision of the Commissioner made under section 11 or 12 may appeal the decision to the Administrative Appeals Board.

Marking of optical discs

15. Optical discs must be marked with manufacturer’s code

(1) Every licensee shall cause each optical disc manufactured by him in Hong Kong to be marked with the manufacturer’s code endorsed on his licence.

(2) Subsection (1) does not apply to the manufacture of optical discs for a purpose prescribed by the regulations.

(3) In this section, “marked” (標上) means to be marked in accordance with the standards specified by the Commissioner under section 16.

16. Marking standards

(1) The Commissioner may by notice published in the Gazette specify standards for the marking of manufacturers’ codes on optical discs.

(2) Without limiting the generality of subsection (1), a notice published under this section may—

(a) specify standards in relation to different classes or descriptions of optical discs;

(b) specify standards relating to the manner in which, and the means by which, manufacturers’ codes are to be marked on optical discs or on optical discs of any class or description; and

(c) adopt or incorporate by reference standards that have been published by any body or authority, with or without modification and either as in effect on a particular date specified in the notice or as amended from time to time.

(3) A notice published under this section shall not be regarded as subsidiary legislation.

Inspection and enforcement

17. Power of authorized officers to inspect licensed premises, etc.

(1) Every authorized officer shall for the purposes of this Ordinance have power to do all or any of the following things—

(a) to enter at all reasonable times (or, if specially authorized in writing by the Commissioner, at any time) any licensed premises;

(b) to inspect and search the licensed premises and every part thereof;

(c) to require the production of any licence relating to the operation of the licensed premises or the business concerned, whether granted under this Ordinance or otherwise;

(d) to require the production of any book or document relating to the business concerned, including any licence or other document relating to a person’s right to manufacture optical discs;

(e) to inspect, remove and detain for the purpose of examination for so long as the Commissioner may consider necessary and to examine and copy any such licence, book or document;

(f) to remove and detain for the purpose of examination for so long as the Commissioner may consider necessary and to examine samples of optical discs found in the licensed premises;

(g) to make such examination and inquiry as may be necessary to ascertain whether the provisions of this Ordinance or the Copyright Ordinance (92 of 1997) or the conditions of any licence granted under this Ordinance are being, or have been, complied with; and

(h) to exercise such other powers as may be necessary for giving effect to the provisions of this Ordinance.

(2) A licensee and the employees, servants or agents of a licensee shall furnish the means required by an authorized officer to enable him to exercise his powers or perform his duties under this section.

(3) If in pursuance of this section any authorized officer, having demanded admission into any place and declared his name and business at any entrance thereof, is not immediately admitted, he and any person acting in his aid may break into and forcibly enter the place.

18. Power of authorized officers to enter and search, etc.

(1) An authorized officer may—

(a) subject to section 19, enter and search any place; and

(b) stop, board and search any vessel, aircraft or vehicle (other than a ship of war, military aircraft or military vehicle),

in which he reasonably suspects that there is—

(i) any optical disc which has been manufactured in contravention of this Ordinance; or

(ii) any machinery, equipment or other thing which may be or may contain, or which may likely be or contain, evidence of an offence under this Ordinance.

(2) An authorized officer may, in exercising his powers under subsection (1), seize, remove or detain—

(a) any optical disc which appears to him to have been, or to be likely to have been, manufactured in contravention of this Ordinance; and

(b) any machinery, equipment or other thing which appears to him to be or to contain, or to be likely to be or to contain, evidence of an offence under this Ordinance.

(3) An authorized officer may seize, remove or detain any vessel, aircraft or vehicle (other than a ship of war, military aircraft or military vehicle) which he is empowered by this section to stop, board and search and which he reasonably suspects is being used, or to have been used, in connection with an offence under this Ordinance.

(4) An authorized officer may—

(a) break into and forcibly enter any place which he is empowered by this section to enter and search;

(b) forcibly board any vessel, aircraft or vehicle which he is empowered by this section to stop, board and search;

(c) remove by force any person or thing obstructing him in the exercise of any power conferred on him by this section;

(d) detain any person found in any place which he is empowered by this section to enter and search until such place has been searched; and

(e) prevent any person from approaching or boarding any vessel, aircraft or vehicle which he is empowered by this section to stop, board and search until it has been searched.

(5) Where it is not practicable to remove any machinery, equipment or other thing pursuant to subsection (2)(b), an authorized officer may seal the machinery, equipment or other thing or the place where it is kept so as to prevent its use without breaking the seal.

(6) Where a place is sealed under subsection (5), the period for which the place is sealed shall not exceed 14 days unless an order has been made under subsection (8).

(7) The Commissioner may apply to a magistrate for an order that the period under subsection (6) be extended or further extended for such period as specified in the application.

(8) Upon an application made under subsection (7), the magistrate may, if having regard to all the circumstances of the case he thinks proper so to do, make an order extending or further extending the period under subsection (6) for such period as he thinks fit.

19. Authority to issue warrant for entry and search

(1) A magistrate may, if he is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any place—

(a) any optical disc which has been manufactured in contravention of this Ordinance; or

(b) any machinery, equipment or other thing which may be or may contain, or which may likely be or contain, evidence of an offence under this Ordinance,

issue a warrant authorizing an authorized officer to enter and search the place.

(2) Subject to subsection (3), an authorized officer shall not enter and search any place under section 18(1)(a) except under the authority of a warrant issued under this section.

(3) An authorized officer may enter and search any place under section 18(1)(a) without a warrant issued under this section if the delay necessary to obtain a warrant could result in the loss or destruction of evidence or for any other reason it would not be reasonably practicable to obtain a warrant.

20. Seized optical discs, etc., liable to forfeiture

(1) Any optical disc, machinery, equipment or other thing seized, removed or detained by an authorized officer under section 18(2) or any machinery, equipment or other thing sealed by an authorized officer under section 18(5) is liable to forfeiture in accordance with this section and whether or not any person has been charged with an offence under this Ordinance.

(2) Sections 131 and 133 of the Copyright Ordinance (92 of 1997) shall apply in respect of any optical disc, machinery, equipment or other thing liable to forfeiture under subsection (1), with such modifications as the circumstances require.

(3) For the purpose of applying sections 131 and 133 of the Copyright Ordinance (92 of 1997), any reference in those sections—

(a) to an offence under section 118 or 120 of that Ordinance shall be construed as a reference to an offence under this Ordinance;

(b) to an article, vessel, aircraft, vehicle or thing seized or detained by an authorized officer under section 122 of that Ordinance shall be construed as a reference to any optical disc, machinery, equipment or other thing seized, removed or detained by an authorized officer under section 18(2) or any machinery, equipment or other thing sealed by an authorized officer under section 18(5) of this Ordinance; or

(c) to section 132 of that Ordinance shall be construed as a reference to section 27 of this Ordinance.

Offences and penalties

21. Manufacturing optical discs without licence, etc.

(1) Any person who contravenes section 3 commits an offence and is liable—

(a) on a first conviction, to a fine of $500,000 and to imprisonment for 2 years; and

(b) on a second or subsequent conviction, to a fine of $1,000,000 and to imprisonment for 4 years.

(2) Any person who contravenes section 4 or 15 commits an offence and is liable—

(a) on a first conviction, to a fine at level 6 and to imprisonment for 2 years; and

(b) on a second or subsequent conviction, to a fine of $200,000 and to imprisonment for 4 years.

(3) Any licensee who manufactures optical discs in contravention of any conditions endorsed on his licence commits an offence and is liable—

(a) on a first conviction, to a fine at level 2 and to imprisonment for 6 months; and

(b) on a second or subsequent conviction, to a fine at level 4 and to imprisonment for 1 year.

(4) Any person who contravenes section 9 or 10 commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 6 months.

(5) In any proceedings for an offence under subsection (3), it shall be a defence for the person charged to prove that he took all reasonable steps and exercised all due diligence to avoid the commission of the offence.

22. Applying false manufacturer’s code, etc.

(1) Any person who—

(a) forges a manufacturer’s code;

(b) falsely applies to an optical disc a manufacturer’s code or any mark so resembling a manufacturer’s code as to be calculated to deceive;

(c) makes any die, block, machine or other instrument for the purpose of forging, or of being used for forging, a manufacturer’s code;

(d) disposes of or has in his possession any die, block, machine or other instrument for the purpose of forging a manufacturer’s code; or

(e) causes to be done anything referred to in paragraph (a), (b), (c) or (d),

commits an offence.

(2) Any person who commits an offence under subsection (1) is liable—

(a) on a first conviction, to a fine of $500,000 and to imprisonment for 2 years; and

(b) on a second or subsequent conviction, to a fine of $1,000,000 and to imprisonment for 4 years.

(3) In any proceedings for an offence under subsection (1) it shall be a defence for the person charged to prove that he acted without intent to deceive or defraud.

23. False and misleading statements

Any person who makes any false or misleading statement or furnishes any false or misleading information in connection with—

(a) any application made, or notice given, by him under this Ordinance; or

(b) any request by the Commissioner or an authorized officer for information under this Ordinance,

commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 6 months.

24. Obstruction of authorized officers

(1) Without prejudice to any other Ordinance, any person who—

(a) wilfully obstructs an authorized officer in the exercise of his powers or the performance of his duties under this Ordinance;

(b) wilfully fails to comply with any requirement properly made to him by any such authorized officer;

(c) without reasonable excuse, fails to give such authorized officer any other assistance which he may reasonably require to be given for the purpose of exercising his powers or performing his duties under this Ordinance; or

(d) breaks or interferes with a seal affixed by an authorized officer under section 18(5),

commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 1 year.

(2) Any person who, when required to give information to the Commissioner or an authorized officer in the exercise of his powers or the performance of his duties under this Ordinance, knowingly gives false or misleading information commits an offence and is liable on conviction to a fine at level 4 and to imprisonment for 1 year.

(3) Nothing in this section requires any person to give any information which may incriminate him.

(4) No person commits an offence under subsection (1)(d) if he breaks or interferes with a seal affixed by an authorized officer under section 18(5)—

(a) in the bona fide belief that it is necessary immediately to break or interfere with the seal in order to prevent injury being suffered by any person or damage being incurred to any premises, place, machinery, equipment or other thing; or

(b) in the exercise of his duties as a public officer.

25. Offences related to disclosure of information

(1) Subject to subsection (2), any person who discloses to any other person any information obtained by him in pursuance of this Ordinance commits an offence unless the disclosure was made—

(a) for the purpose of the performance by him or any other person of duties or functions under this Ordinance; or

(b) under the direction or order of a court.

(2) A person does not commit an offence under subsection (1) by disclosing information pursuant to section 36 or 37.

(3) Any person who commits an offence under subsection (1) is liable on conviction to a fine at level 4 and to imprisonment for 1 year.

26. Liability of persons other than principal offender

(1) Where a body corporate commits an offence under this Ordinance in respect of any act which is proved to have been committed with the consent or connivance of, or to be attributable to any act on the part of, any director, manager, secretary or other similar officer of the body corporate or any person purporting to act in any such capacity, he, as well as the body corporate, commits the offence.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies in relation to the acts of a member in connection with his functions of management as if he were a director of the body corporate.

(3) Where an offence under this Ordinance committed by a partner in a partnership is proved to have been committed with the consent or connivance of, or to be attributable to any act on the part of, any other partner of the partnership or any person concerned in the management of the partnership, that other partner or the person concerned in the management of the partnership commits the like offence.

27. Disposal of optical discs, etc., where a person is charged

Without prejudice to section 20, where a person is charged with an offence under this Ordinance, the court may, if it is satisfied that—

(a) any optical disc seized, removed or detained by an authorized officer under section 18(2) in connection with the offence has been manufactured in contravention of this Ordinance; or

(b) any machinery, equipment or other thing so seized, removed or detained under section 18(2) or any machinery, equipment or other thing sealed by an authorized officer under section 18(5) has been used in connection with any offence under this Ordinance,

order that the optical disc, machinery, equipment or thing be—

(i) forfeited to the Government; or

(ii) disposed of in such other way as the court may think fit,

whether or not the person charged is convicted of the offence with which he was charged.

28. Protection of informers

(1) Save where, in the opinion of the court, justice so requires, the name or identity of any informer and the information given by such informer shall not be disclosed in any proceedings for an offence under this Ordinance.

(2) The court may make any order and adopt any procedure necessary to prevent any such disclosure.

29. Time limit for prosecutions

No prosecution for an offence under this Ordinance shall be commenced after the expiration of 3 years from the date of commission of the offence or 1 year from the date of discovery of the offence by the prosecutor, whichever is the earlier.

Miscellaneous

30. Form of applications, etc.

(1) Every application under this Ordinance shall be made to the Commissioner in such form and manner as he may require.

(2) Every application made under this Ordinance must be accompanied by—

(a) any fee applicable under Schedule 2; and

(b) a statement in writing containing such particulars as the Commissioner may require.

(3) Any application made under this Ordinance by a body corporate may be signed by any director, manager, secretary or other similar officer of the body corporate who is authorized in that behalf by the body corporate, and the Commissioner may require such proof of the authorization as he considers necessary.

(4) Any application made under this Ordinance by a partnership must be signed by at least one of its partners, and the Commissioner may require such proof of the partnership as he considers necessary.

31. Register

(1) The Commissioner shall establish and maintain a register in such form and containing such information respecting licences and manufacturers’ codes as he thinks fit.

(2)The Commissioner shall make the register available to public inspection subject to such conditions as he thinks fit.

32. Appointment of authorized officers

The Commissioner may authorize in writing any public officer to exercise any of the powers and perform any of the duties conferred or imposed on an authorized officer by this Ordinance.

33. Protection of the Commissioner, authorized officers and persons assisting them

(1) The Commissioner and authorized officers are not liable for any loss or damage suffered by any person as a result of any action taken or omitted to be taken by them in good faith in the exercise of their powers or the performance of their duties under this Ordinance.

(2) Any person may act in aid of an authorized officer who appears to be lawfully engaged in the exercise of any power or the performance of any duty under this Ordinance upon being requested by the authorized officer to do so and without being bound to inquire whether or not the authorized officer is acting lawfully or within the scope of his powers or duties.

(3) A person acting in good faith in aid of an authorized officer under subsection (2) is not liable for any loss or damage suffered by any person as a result of any action taken or omitted to be taken by him while so acting.

(4) Nothing in this section shall affect any civil liability of the Government for the wrongful acts of its servants.

34. Compensation for seizure, etc.

(1) Where any optical disc, machinery, equipment or other thing is seized, removed or detained by an authorized officer under section 18(2) or any machinery, equipment or other thing is sealed by an authorized officer under section 18(5), the Government shall, subject to this section, be liable to compensate the owner thereof for any loss suffered by him by reason of the seizure, removal, detention or sealing thereof or by reason that the optical disc, machinery, equipment or thing is lost or damaged during the period when it is detained or sealed; but the owner shall not be entitled to compensation for any such loss if—

(a) the optical disc, machinery, equipment or thing is forfeited under section 20;

(b) the owner has been convicted of an offence under this Ordinance or the Copyright Ordinance (92 of 1997) committed in relation to the optical disc, machinery, equipment or thing; or

(c) an order has been made in respect of the optical disc, machinery, equipment or thing under section 27.

(2) In any proceedings against the Government in respect of a claim for compensation on any of the grounds referred to in subsection (1), the amount of the compensation recoverable shall be such amount as is just and equitable in all the circumstances of the case, including the conduct and comparative blameworthiness of—

(a) the owner of the optical disc, machinery, equipment or thing;

(b) the person in charge or control of the optical disc, machinery, equipment or thing at the time it was seized, removed or sealed;

(c) the agents of the person specified in paragraphs (a) and (b); and

(d) authorized officers, public officers and other persons concerned.

(3) No proceedings shall be maintainable in respect of any claim for compensation on any of the grounds referred to in subsection (1) unless the proceedings are commenced—

(a) in the case of a claim for compensation in respect of any optical disc, machinery, equipment or thing delivered to its owner by order of a court or magistrate or by any person having authority to deliver the optical disc, machinery, equipment or thing to him, not later than 6 months after the delivery thereof;

(b) in the case of a claim for compensation on the ground that any optical disc, machinery, equipment or thing was lost during the period when it was detained or sealed, not later than 6 months after—

(i) the discovery by the owner of the existence of such ground; or

(ii) the date on which the owner could, by the exercise of reasonable diligence, have discovered the existence of such ground,

whichever is the earlier.

35. Aids in proof

(1) A certificate purporting to be certified under the hand of the Commissioner and stating whether—

(a) a person named in the certificate has or has not been granted a licence under this Ordinance;

(b) a licence granted under this Ordinance to a person named in the certificate has or has not expired or has or has not been revoked or cancelled; or

(c) a manufacture’s code specified or described in the certificate has or has not been assigned under section 5(2)(a) or 8(3)(b) to a person named in the certificate,

shall be evidence of the matters stated therein as at the date of the certificate and shall be received in evidence in any proceedings under this Ordinance without further proof.

(2) A copy of any licence which purports to be certified under the hand of the Commissioner shall be evidence of the licence and of the matters stated therein as at the date of the copy and shall be received in evidence in any proceedings under this Ordinance without further proof.

36. Disclosure of information, inspection, release of samples, etc.

Sections 126 and 128 of the Copyright Ordinance (92 of 1997) shall apply in respect of any optical disc, machinery, equipment or other thing seized, removed or detained by an authorized officer under section 18(2) or any machinery, equipment or other thing sealed by an authorized officer under section 18(5) of this Ordinance, with such modifications as the circumstances require.

37. Multilateral co-operation

The Commissioner may, for the purpose of promoting multilateral co-operation in the protection of intellectual property rights, disclose information obtained in pursuance of this Ordinance to the customs authorities or other authorities responsible for the enforcement of intellectual property rights of—

(a) any country, territory or area which is, at the relevant time, a member of the World Trade Organization; or

(b) such other country, territory or area as the Commissioner thinks fit.

38. Regulations

The Secretary for Trade and Industry may make regulations—

(a) prescribing anything required or permitted to be prescribed under this Ordinance; and

(b) for the better carrying into effect of the provisions of this Ordinance in relation to any matter.

39. Amendment of Schedules

The Secretary for Trade and Industry may by order amend Schedule 1 or 2.

40. Saving for other enactments

The provisions of this Ordinance are in addition to and not in derogation of the provisions of—

(a) the Copyright Ordinance (92 of 1997); or

(b) any other Ordinance relating to the manufacture of optical discs.

Consequential and Related Amendments

Specification of Public Offices

41. Schedule amended

The Schedule to the Specification of Public Offices (Cap. 1 sub. leg.) is amended by adding—

“Commissioner of Customs and Excise

Prevention of Copyright Piracy Ordinance (22 of 1998).”.

Customs and Excise Service Ordinance

42. Ordinances referred to in sections 17 and 17A

Schedule 2 to the Customs and Excise Service Ordinance (Cap. 342) is amended by adding—

“Prevention of Copyright Piracy Ordinance (22 of 1998)”.

Administrative Appeals Board Ordinance

43. Schedule amended

The Schedule to the Administrative Appeals Board Ordinance (Cap. 442) is amended by adding—

“41. Prevention of Copyright Piracy Ordinance (22 of 1998)

A decision of the Commissioner of Customs and Excise under section 11 or 12 of the Ordinance.”.

Copyright Ordinance

44. Section added

The Copyright Ordinance (92 of 1997) is amended by adding—

“120A. Time limit for prosecutions

No prosecution for an offence under this Ordinance shall be commenced after the expiration of 3 years from the date of commission of the offence or 1 year from the date of discovery of the offence by the prosecutor, whichever is the earlier.”.

45. Powers of investigating officers

Section 122 is amended—

(a) in subsection (1)(a)(i), by repealing “premises or”;

(b) in subsection (2)(a), by repealing “open any outer or inner door of” and substituting “into and forcibly enter”;

(c) by adding—

“(3) An authorized officer may call upon any authorized officer to assist him in the exercise of any of his powers under this section.”.

46. Section substituted

Section 123 is repealed and the following substituted—

“123. Authority to issue warrant for entry and search

(1) A magistrate may, if he is satisfied by information on oath that there are reasonable grounds for suspecting that there is in any place any article or thing which may be seized, removed or detained under section 122(1)(b), issue a warrant authorizing an authorized officer to enter and search the place.

(2) Subject to subsection (3), an authorized officer shall not enter and search any place under section 122(1)(a)(i) except under the authority of a warrant issued under this section.

(3) An authorized officer may enter and search any place under section 122(1)(a)(i) without a warrant issued under this section if the delay necessary to obtain a warrant could result in the loss or destruction of evidence or for any other reason it would not be reasonably practicable to obtain a warrant.”.

Optical Discs

1. CD (compact disc).

2. CD-ROM (compact disc—read only memory).

3. CD-R (compact disc—recordable).

4. CD-RW (compact disc—rewritable).

5. CD-W (compact disc—writable).

6. DVD (digital video disc).

7. DVD-ROM (digital video disc—read only memory).

8. LD (laserdisc).

9. MD (mini-disc).

10. VCD (video compact disc).

Fees

Item	Matter or proceeding	Amount $
1.	Application for licence	5,500
2.	Application for renewal of licence	5,500
3.	Application for transferal of licence	5,500