TNAG-0265-FCO40-301-Legislation-for-copyright-in-Hong-Kong-1970 — Page 20

2.

(35)

See

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reservation withholding from broadcasters the right to control diffusion of their broadcasts in the United Kingdom. The Agreement was signed in 1960 and, having regard to the fact that the Copyright Act 1956 does not provide for this right, it could not have been ratified without making the reservation. It is to be noted also that HMG has ratified the subsequent Protocol to the Agreement which permits only limited restriction of the right of broadcasters to control diffusion as far as new members of the Convention are concerned.

(c) Diffusion may or may not be merely assisting reception. If it simply improves reception in an area in which the broadcast signal is readily receivable, this is true; if it increases the audience it is not. The Fortnightly case to which the paragraph refers was not concerned with the rights of the broadcasting organisation but with the question of whether the owner of the copyright in a film was entitled to further payment for the wire diffusion of a (lawful) broadcast of the film.

(a) Is true as far as territories to which the 1956 Act has been extended are concerned but it should be emphasised that the UK situation is the one which is out of line with other countries. See e.g. the Council of Europe Agreement referred to above.

On the question whether, if Hong Kong were to attempt to create for broadcasters a right to control wire diffusion, they would be ultra vires, I think we have already agreed, after obtaining the opinion of the Board of Trade Solicitor, that the right could not be created by the Order in Council extending the Copyright Act 1956 to Hong Kong. Accordingly Hong Kong are proposing to create it in a separate Ordinance. We cannot of course say whether there is any question of repugnancy by virtue of the Colonial Laws Validity Act 1865. As to the reference in the memorandum to the judgment of the Privy Council, Wallace has already commented on that in his letter dated 30 June 1970.

I have also looked at the copy of the draft Ordinance that you have sent. It is identical with the copy that we received from H R M Beattie of the Commonwealth Trade Department as long ago as 15 February 1968, and Wallace 46) commented on it in letters dated 23 February 1968 and 17 April

1968. I think that when we spoke on the telephone recently you were rather of the opinion that the reference in my letter dated 22 July 1970 to the Copyright (Broadcasting Organisations) Order 1961 was new. In fact you will see

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