CONFIDENTIAL
0442
MDLIAN 4806
APPLICATION OF ENGLISH LAW ORDINANCES (CAP. 88), UK ACTS WHICH APPLY TO HONG KONG MAY BE AMENDED BY ORDINANCE. THIS OPTION CAUSES DRAFTING DIFFICULTIES. THE COPYRIGHT ORDINANCE (CAP. 39) IS LARGELY AN ENFORCEMENT ORDINANCE. THE INCLUSION OF SUBSTANTIVE PROVISIONS WOULD NOT SIT COMFORTABLY. IT IS NOT MERELY A MATTER OF RECITING RELEVANT SECTIONS OF THE 1984 ACT IN A SCHEDULE TO CAP. 39 AS TERMINOLOGY IS USED IN THOSE PROVISIONS WHICH RELATE TO THE 1984 ACT. THE 1984 ACT WOULD NOT APPLY IN HONG KONG AND THUS THAT TERMINOLOGY WOULD HAVE TO BE REVISED.
6. OPTION (III) IS DIFFICULT AS MOST OF OUR SUBSTANTIVE LAW LIES WITH THE 1956 ACT. A SEPARATE ORDINANCE WOULD NEED TO FIT INTO THE EXISTING SCHEME.
7. OPTION (IV) IS SIMILAR TO THE CURRENT EXERCISE IN RELATION TO THE COPYRIGHT (TAIWAN) ORDER 1985, WITHOUT THE POLITICAL DIMENSION. THE LEGAL ANALYSIS FOR THIS OPTION IS AS FOLLOWS:
(A) PARAGRAPH 36(2) OF SCHEDULE 1 TO THE 1988 ACT CONTINUES IN FORCE THE HONG KONG ORDERS AND PROVIDES THAT WHILE SUCH AN ORDER REMAINS IN FORCE IT MAY BE VARIED UNDER THE PROVISIONS OF THE 1956 ACT UNDER WHICH IT WAS MADE''.
(B) SCHEDULE 8 OF THE 1988 ACT REPEALS THE 1956 ACT AND THE 1984 ACT. HOWEVER, AT THE TIME THE 1988 ACT WAS ENACTED THE 1956 ACT WAS THE 1956 ACT AS AMENDED BY THE 1984 ACT. THE REFERENCE TO THE 1956 ACT IN PARAGRAPH 36(2) OF SCHEDULE 1 SHOULD BE SO READ.
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(C) SECTION 31 OF THE 1956 ACT ALLOWS 'ANY OF THE PROVISIONS OF THIS ACT' TO BE EXTENDED TO ANY COLONY BY ORDER-IN-COUNCIL. RELYING ON THAT SECTION AND PARAGRAPH 36(2) OF SCHEDULE 1 OF THE 1988 ACT IT SHOULD THEREFORE BE POSSIBLE TO AMEND THE HONG KONG ORDERS TO EXTEND THE CABLE COPYRIGHT PROVISIONS OF THE 1956 ACT INSERTED BY THE 1984 ACT, TO HONG KONG.
8. GRATEFUL IF YOU COULD SEEK THE VIEWS OF MR. C.A. WHOMERSLEY, ASSISTANT LEGAL ADVISER, FCO. OPTION (IV) IS FAVOURED AS IT WOULD NEATLY PROVIDE THE TEMPORARY SOLUTION WE SEEK WITHOUT THE NEED FOR A HIGHLY TECHNICAL DRAFTING EXERCISE. THERE IS A DEGREE OF URGENCY AS IF OPTION (IV) IS NOT FAVOURED A TIGHT LEGISLATIVE TIMETABLE MUST BE MET TO ACHIEVE PROTECTION LOCALLY.
FORD
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