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case
18.
Given the concession which was made and the actual issue which had to be decided by the courts in the Rediffusion
it is not
to draw altogether straightforward matter to lessons from it for present purposes. But I think it affords some assistance. There are, as I will try to show, a number of significant differences between the two situations.
19.
The vital point,
think, is this: it is only repugnancy to such Imperial law as has in fact been extended to Hong Kong that can render local legislation ultra vires and void. The repugnancy, if it exists, may arise at two distinct stages of the legislative process: (1) pre-enactment, by virtue of the positive and particular prohibition imposed on the local legislature by section 31 (3) of the 1956 Act; and (2), post- enactment, by the terms of section 2 2 of
of the Colonial Laws Validity Act.
20.
At present, no Imperial legislation relating to copyright in cable programmes has been extended to Hong Kong, though, of course, such now exists (back in 1968 there was none). Indeed, if the FCO is right, such an extension would be possible now only via the Copyright, Designs and Patents Act 1988, no part of which has been applied to this territory. The restrictions on what may be locally enacted which are imposed by section 31(3) of the 1956 Act have по bearing upon areas of copyright protection which now exist in the United Kingdom under its present law, or which once existed under the amended 1956 Act prior to its repeal.
21.
If that premise is correct, then the existence (or former-existence) in the United Kingdom of a body of unextended copyright law poses no obstacle to Hong Kong adopting for itself through local legislation a similar régime, whether one which is co-extensive with the UK law ΟΣ not, provided that the supplementary local body of law displays no repugnancy to such of the Imperial law as has been extended and is not incompatible with the United Kingdom's international obligations as they impinge on Hong Kong and its copyright relations with third countries.
need for Kong is
22.
On the assumption, that had the issue been tried and decided, the concession given by HKG in the Rediffusion case was, as 2 matter of law. properly made, Our present enlargement of copyright protection in Hong distinguishable from that which arose in 1968. The attempt then was to bring transmission to wired diffusion systems within the meaning of "television broadcast" and thus the copyright protection enjoyed by the latter under the provisions of the 1956 Act which were to be extended to Hong Kong. This would have taken the degree of protection sought beyond anything that could then have been extended to Hong Kong from the UK's own copyright régime, and SO a repugnancy,
potential repugnancy, must inevitably have arisen.
or
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