CONFIDENTTAL
3.16/6
SAVING DESPATCH
From the Secretary of State for Com onwealth Affairs
To the Officer Administering the Government of HONG KONG
Dute
5 AUGUST, 1968
No. 479 Saving
39
158,
Your Saving Despatch No.211 of 10 February 1963.
Copyright Legislation
76
An interim reply was sent to you in a letter from the Department (CR.4/2/44 of 22 Kay), as a result of which you felt that immediate consultation with us and with the Board of Trade was desirable and sent Mr. J.W.D. Hobley, Assistant to your Law Officers, to London for this purpose.
2. As you will be aware, Mr. Hobley had useful consultations with officials concerned and also with our Deputy Legal Adviser; it is now possible to comment, with better understanding, upon the issues raised by the proposed legislation.
3. In the course of the consultations consideration was given first to the question whether the Licence to Rediffusion (Hong Kong) Limited conferred the exclusive right to relay broadcast television material and whether the draft copyright legislation would, if enacted take away that right and, es it were, constitute a breach of
contract.
4. In the opinion of our Legal Advisers, the licence did confer on Rediffusion (Hong Kong) Limited the exclusive right to relay broadcast television material, even if, as Mr. Hobley stated, the Hong Kong Government records of the negotiations leading up to the grant of the licence showed that this was not then the Government's intention. They consider that paragraph (b) of the licence gave Rediffusion the exclusive right to maintain a service distributed from their stations by wire of any television programmes and did not limit the service to their own originated programmes or to one programme; and they also consider that it would be difficult to justify taking away from Rediffusion the right to distribute by wire broadcast television programmes (if that was what the proposed copyright legislation would do) on the ground aly of the intention of the Government in 1957.
5. But, in our Legal Advisers' view, the licence was necessarily subject to the law of Hong Kong. The fact that Rediffusion (Hong Kong) Limited held an exclusive right to relay television broadcasts would not, for the sole reason that the effect of the proposed copyright legislation would be that Rediffusion would have to obtain a licence from the broadcasting company concerned before they could exercise their exclusive right to relay a broadcast and that the company might not grant it, constitute a legal objection to the proposed copyright legislation. It is considered that Rediffusion (Hong Kong) Limited could have no valid objection to that being done since the licence itself expressly declared that it was subject to eny copyright which might exist in matter received by means of Rediffusion's broadcast receiving station.
6. The question whether Section 40(3) of the Copyright Act should be applied to Hong Kong was also discussed with Kr. llobley. We are advised that it should be applied and that either it should be applied in relation to Hong Kong broadcasting companies (as it applies to the B.B.C. and I.T.A.) by the Order in Council or that similar provision to that effect should be included in the Ordinance. Subject to this point no`legal objection is seen to the proposed Order in Council or to the
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Chy out to MM W. Wallace, Служ
Patents Dep.
CONFIDENTIAL
Du. B.D.
/proposed
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