Mr
Holley's Kate
19/6/11
Our discussion on Wednesday was wide-ranging, and I feel that I should like to leave with you a brief note of my arguments in relation to the rights which R.T.V. claims under
the licence.
(a)
The licence was granted under the Telecommunications
Ordinance.
Whilst that Ordinance empowers the Governor in Council to grant a monopoly of any particular telecommunications service, it does not empower the Governor in Council to grant rights in the nature of property rights. Even the grant of monopoly rights is subject to that limitation.
To put the matter the other way round the Telecommunications Ordinance (apart from authorizing the grant of monopoly rights) only empowers the Governor in Council (or the P.M.G.) to grant licences authorizing persons to carry on a means of telecommunica- tion, an operation which is otherwise prohibited by the
Ordinance.
Therefore, any rights granted by a licence under the Ordinance (including monopoly rights) must be subject to any other relevant law. Clause 17(2) of the licence points the way
clearly in this respect.
It is accordingly submitted that the Hong Kong legislature may make relay a restricted act for the purposes of the law of copyright, so it affects broadcasts as such, without in any way impinging on the rights granted to R.T.V. under its licence. The right which the licence grants, to operate a telegraph, to provide an exclusive wired television service and to receive and relay broadcasts will be quite untouched (within what is suggested to be their proper limitations under the Telecommunications Ordinance) by the proposed clause 4(2) of the Copyright Bill.
It is, of course, inaccurate (except perhaps in the context of monopoly rights) to think in terms of "rights" under the Telecommunications Ordinance the true nature of the licence is the grant of permission to do an otherwise prohibited act, and this underlines the fact that the Ordinance has nothing to do
with property rights.
(b) Paragraph (b) of the licence does not confer any relay rights, exclusive or otherwise, It confers on R.T.V. a monopoly right to provide a wired television service of its own.
It confers a right to provide such a service consisting of (1) television programmes and other matter originated at or
distributed from the distribution station; and
(ii) such other matters as the licensee may be permitted to
distribute in accordance with the licence.
/The