Copyright & Copywrong: Knowing the difference: Overview

Copyright is the right given to the owner of an original work, both print or from the online environment, including:

1. Literary works such as books and computer software
2. Musical works such as musical compositions
3. Dramatic works such as plays
4. Artistic works such as drawings, paintings and sculptures, sound recordings, films, broadcasts and cable programmes
5. Typographical arrangement of published editions of literary, dramatic or musical works
6. Performers' performances

You as the copyright owner has exclusive rights to reproduce, prepare derivative works, distribute, copy, perform or display your work. Unless you choose to transfer all or part of these rights as is often the case when signing copyright transfer agreements with publishers, you keep all your rights. Anyone who exercises these rights without your permission (except as in fair dealing) is deemed to commit copyright infringement.

Source | ipd.gov.hk/eng/pub_press/publications/hk.htm#cp1

Fair dealing refers to exemptions aimed at facilitating modern teaching and applies to both printed works and online materials. The exemption allows teachers and students to use reasonable portions of copyright work in a fair manner for teaching and learning:

To decide whether your dealing with a copyright work is “fair”, you need to consider all circumstances of the use, in particular:

1. The purpose and nature of the dealing, whether it is for non profit-making or commercial
2. The nature of the work
3. The amount and substantiality of the portion dealt with in relation to the work as a whole
4. Effect of the dealing on the potential market for or value of the work 

Note however, that there is no prescribed amount on what can be copied. It is not always quantity, but also quality when observing fair dealing. For example, a work will only be infringed if a substantial or important part is taken, such as copying a catchy musical phrase from a song.

To enjoy fair dealing, you need to ensure proper attribution - acknowledge with title and authorship of the work.

Source | elegislation.gov.hk/hk/cap528?xpid=ID_1438403328788_001

Defined by various international legal systems, fair use is a concept related to fair dealing but the difference is not clear-cut. The U.S. legal tradition in copyright and intellectual property has long relied on fair use while the Commonwealth countries have all used fair dealing instead.

To understand what constitutes as fair, check out the U.S. Copyright Office Fair Use Index which documents U.S. judicial decisions and courts of appeal’s fair cases. Select the Education/Scholarship/Research category to focus on examples from academia.

Source | copyright.gov/fair-use

Copyright does not last forever. Unlike the U.S. where protection is for 70 years, copyright protection in Hong Kong is for 50 years depending on the nature of your work:

1. Literary, dramatic, musical or artistic works and films (in general)
   50 years from the end of the calendar year in which the author died. However, upon death of the author or creator, copyright passes on the heirs so even though Picasso is dead, his works are still protected.
    
2. Sound recording
   50 years from the time it is made, or if during that period it is released, 50 years from the date of release.
    
3. Performance
   50 years from the time the performance takes place or, if during that 50 year period, a recording of the performance is released, the protection lasts for 50 years from the date of release. 

Source | ipd.gov.hk/eng/pub_press/publications/cpr_ed_e.pdf

Copyright is automatic - it arises when a work is created. Unlike other intellectual property such as patents, trademarks and industrial designs, you do not need to register for copyright protection. In fact, there is no official registry in Hong Kong for copyright registration. Whether your work has aesthetic value or is creative does not matter at all. An item as simple as a photograph taken by anyone is automatically protected.

Hong Kong is also bound by a group of international treaties to respect copyright in works of creators from other places, and most of the world is covered by these treaties. Your work is therefore recognised and protected in all parts of China (including Taiwan) and around the world. 

Source | ipd.gov.hk/eng/pub_press/publications/hk.htm#cp1

Creative Commons is a non-profit organisation set up in 2001 with the aim to facilitate sharing and reuse of creativity and knowledge through the use of various legal tools. It allows users to easily create their own licence from 6 categories:

1. CC BY | Attribution
   Most accommodating of all licences offered, it allows others to distribute, remix, tweak, and build upon our work, even commercially, as long as they credit you.
    
2. CC BY-SA | Attribution-ShareAlike
   ​Used by Wikipedia, this licence lets others remix, tweak, and build upon your work even for commercial purposes, as long as they credit you and license their new creations under identical terms. All new works based on yours will carry the same licence, so any derivatives will also allow commercial use.
    
3. CC BY-ND | Attribution-NoDerivs
   ​This licence allows for redistribution, commercial and non-commercial, as long as it is passed along unchanged and in whole, with credit to you.
    
4. CC BY-NC | Attribution-NonCommercial
   This licence lets others remix, tweak, and build upon your work non-commercially, and although their new works must also acknowledge you and be non-commercial, they don’t have to license their derivative works on the same terms.
    
5. CC BY-NC-SA | Attribution-NonCommercial-ShareAlike
   ​This licence lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under the identical terms.
    
6. CC BY-NC-ND | Attribution-NonCommercial-NoDerivs
   Most restrictive of the six licenses, this lets others remix, tweak, and build upon your work non-commercially, as long as they credit you and license their new creations under identical terms. It allows downloading and sharing only if they credit you, but they can’t change them in any way or use them commercially.

Visit Which Creative Commons licence is right for me? to find out which licence suits your needs.

Source | creativecommons.org/licenses | hk.creativecommons.org/licenses

Exceptions in copyright law are intended to balance the rights of the owners and society as a whole for public good. This forms the basis for the fair dealing criteria. A work will only be infringed if a substantial part is taken, not only in terms of quantity but also quality. A musician copying a very catchy phrase from another song can be infringement even if that phrase is very short.

Subject to conditions, fair dealing for research and private study; criticism, review and news reporting, for use of works in library and school are permitted. Nevertheless you should still be cautious about possible infringement such as photocopying an unreasonable amount of a book.

Source  | ipd.gov.hk/eng/pub_press/publications/hk.htm#cp1

It is good practice to include a copyright notice in your published work to indicate your ownership. The standard format is: © [year of first publication]. [name of copyright owner]. All rights reserved.

Example: © 2018. Hong Kong Baptist University. All rights reserved.

Please note however, that use of the '©' mark is not a sign of registration. it is simply a signal to others to respect your rights as the owner. 

Source | ipd.gov.hk/eng/pub_press/publications/cpr_ed_e.pdf

Like all intellectual property laws, copyright laws are complex and can be seen as confusing, particularly when aspects such as fair dealing can appear to be unclear. The Intellectual Property Department tells us that it is best to understand copyright, as all other Intellectual property laws, that it is designed to "strike a balance between rights and responsibilities". 

A good way to answer the above question is, as IPD said, instead of asking yourself "do I have the right to do this?", it is better to consider "would it be fair for someone to do this to me?".

Source | ipd.gov.hk/eng/pub_press/publications/cpr_ed_e.pdf