TICS 3168a
E.G 98
ID:0714384780
Patent Office
05 AUG'93 16:24 No.010 P.03
1956 Act by the 1984 Act to Hong Kong. My understanding of paragraph 36(2) has always been that this would be possible. However, I have discussed this with our legal advisor. He has said that paragraph 36(2) of Schedule 1 to the 1988 Act (a saving provision) left in place any Order in Council which was in force immediately before commencement in respect of any provision of the 1956 Act extended to a dependent territory. It is permitted, while the Order is in force, to vary those provisions. The effect of this is that the scope of the 1956 Act as extended prior to 1 August 1989 is fixed; all that is permitted is a variation of the provisions within that scope.
5.
One difficulty with this interpretation of paragraph 36 is its apparent conflict with the Copyright (Hong Kong) (Amendment) Order 1990 (SI 1990 No. 588). This Order, which was drafted by FCO legal advisors, albeit with some consultation with legal advisors here, extended section 32 of the 1956 Act to Hong Kong for the first time. Our legal advisor agrees that with his interpretation of paragraph 36(2) the 1990 Order appears to be ultra vires.
6. Our legal advisor has also argued that the narrow interpretation of paragraph 36(2) is consistent with the general indicator of policy found in the clearly very restricted power in paragraph 36(1) to do anything regarding Orders extending the Copyright Act 1911 to dependent territories. There is no power to vary or modify these orders; they merely remain in force until replaced by an Order extending the 1988 Act. I have not been able to come up with anything confirming the intention behind paragraph 36 from the time it was drafted and enacted. If asked now, our first choice, of course, would be to encourage our dependencies to introduce up-to-date copyright law, and extension of the 1988 Act is clearly the best way of achieving this rather than tacking on the various amendments made to earlier Acts. Even with all the amendments that were made to the 1956 Act, there would still be deficiencies.
7. If your legal advisor would like to discuss any of the issues above with our legal advisor, can I suggest that he or she contacts Mr Daleep Mangat direct on 215 3472. His address is SolC4, DTI, Room 108, 10-18 Victoria Street, London SW1H ONN.
8. There is, of course, one solution to Hong Kong's problem which at least all here are agreed would be possible. That is, extension of the 1988 Act to Hong Kong. I know Hong Kong has ruled it out in the past as not worthwhile since they are preparing their own copyright law for the future. It would also, I imagine, be a complex operation as decisions would have to be made about how to modify any extension. I just feel you should not forget that the possibility is there.
9. Finally, I think it is also worth taking up with Hong Kong again whether, pending introduction of their own copyright
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