to Hong Kong by the Copyright (Computer Software) (Extension to Territories) Order 1987. It may be that some of the "Minor and consequential Amendments" to the Act listed in Schedule 5 to the 1984 Act could be made, but we presume that they would be insufficient to achieve your purpose. Our legal adviser finds the DTI legal adviser's interpretation persuasive and, in the light of it, would advise strongly against proceeding with an Order which runs a high risk of being found invalid.
4. Unfortunately, the DTI legal adviser has pointed out that it follows from his interpretation, that the Copyright (Hong Kong) (Amendment) Order 1990 is ultra vires ( and therefore null and void). This is because it extended to Hong Kong for the first time the provisions of section 32 of the 1956 Act, subject to the modifications specified. This could have been done under section 31 of the 1956 Act before the 1988 Act came into force, but after that date the powers in section 31 were limited by para 36(2) of Schedule 1 to the 1988 Act. You will doubtless wish to consider whether any action has been taken under the 1990 Act, and what the practical consequences would be if the Order were found to be invalid.
5.
If you consider that you can achieve your desired objectives by means of modifications to the existing Hong Kong Orders within the scope of the provisions of the 1956 and 1985 Acts already extended to Hong Kong, you will have to tell us precisely what modifications you wish to have made. If, however, as we presume is the case, what is required is completely new legislation dealing with cable television, you will have to introduce it locally.
6. There is, as you are no doubt aware, still the option of extending the Copyright, Designs and Patents Act 1988 to Hong Kong by Order in Council. However, we assume that this has already been considered and that your reasons for not wishing to pursue this course still stand.
7.
The Patent Office have also put forward the following idea as a stopgap:
It
" I imagine that the Hong Kong authorities have to licence any cable operator. A condition of the licence could be that the cable operator must behave as though copyright law is as in either the 1956 Act as amended by the 1984 Act or the 1988 Act. This would seem to protect the owner of copyright in a work against unauthorised inclusion of the work in a cable programme service. would not protect the cable programme as such, but I am not sure who would be able to receive a cable programme service apart from those who have some contractual arrangement with the cable programme supplier. Is there any reason why this contract should not include terms to prevent further copying?"
We do not feel in a position to comment, but would be interested in your reaction.
Let2.SubTV
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