Ms Bouch HKD
F
нис
HKC 031/15
FROM:
2.001 1993
Jill Barrett
Assistant Legal Adviser K174 270 3381
DATE:
8 October 1993
HONG KONG: SUBSCRIPTION TELEVISION COPYRIGHT PTOTECTION
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1. I refer to your minute of 29 September and attached draft letter to Mrs Sullivan, Patent Office. The first paragraph is fine. I am slightly puzzled by the reference in the second paragraph to unresolved points arising from your letter to Peter Harrison which are currently with your legal adviseres and on which you will be consulting her and Mr Mungat. Surely that letter now rests with Mr Harrison; the unresolved issues arise from the letter from Ms Nip of 16 September and the one of 20 September from Ms Au? However, I am content to leave it to you to decide how to phrase that sentence. I agree that it is sensible to forward Ms Nip's letter of 27 September to Mrs Sullivan and to deal with the other issues separately.
2. I refer now to the letter of 16 September from Ms Nip. There is nothing of substance which we need to say in reply, since she says that HKG have decided that it would be more expedient to enact local legislation to protect cable programmes in any event. The disagreement over the vires to make Orders in Council is therefore academic from the point of view of Recreation and Culture Branch. I would suggest that you acknowledge her letter and say that we will continue to discuss the legal position with Trade and Industry Branch.
3. The difficult letter is the one from Ms Au of 20 September. She asks for copies of the legal advice you have received on this issue. I have no objection to my minutes of 30 July and 6 August being copied to her. However, before copying the one of 6 August you would need to clear this with Mrs Sullivan and Mr Mungat, as I have referred in it to their views. I hope that they will not object, as i think that that minute makes clear how we have considered the various arguments. You could say to Ms Au in your covering letter that the most important point lies in para 9; ie that there is room for more than one view, but that since there is such doubt about the scope of the powers, it would be more prudent not to rely on them.
4. Ms Au refers in her letter to FCO and DTI legal advice given in 1989 and 1990 when the 1990 Order was made. I believe that the FCO advice was given by Mr Whomersley, but unfortunately as he is away for a month on various overseas negotiations I have not been able to discuss this with him. It would be helpful if you could locate the files which relate to the making of that Order. The DTI advice was given by Mr Mungat; it may be that his views have changed since then, or that he did not focus on
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