TNAG-2819-FCO40-4068-Future-of-Hong-Kong-International-Rights-and-Obligations-(IR-1993 — Page 112

FROM:

MKC 031/15

Jill Barrett

Assistant Legal Adviser K174 270 3381

2. AUG 1993

DATE:

6 August 1993

Ms Bouch

HKD

HONG KONG:' SUBSCRIPTION TELEVISION COPYRIGHT PROTECTION

1. I refer to your minute of 5 August, the attached draft reply to Hong Kong, and the letter from Mrs Sullivan of the Patent Office.

2. The picture has indeed been further complicated by the fact that Mrs Sullivan takes a different view of the legal powers available for extending the Hong Kong legislation from her legal adviser, Mr Mangat of the DTI. I have discussed this at length with Mr Mangat, who had not seen Mrs Sullivan's letter, but it would seem that her letter does summarise accurately his views.

3.

Like Miss Brooks and I, Mr Mangat takes the view that the powers available to modify by Order in Council the existing HK Copyright Orders are very limited. In fact, he considers the powers to be even more limited than we had thought. His view is that the power in para 36(2) of Schedule 1 of the Copyright, Designs and Patents Act 1988 to vary existing Orders applies only to provisions of the Copyright Act 1956 which had already been extended to Hong Kong before the 1988 Act entered into force. The powers in section 31 of the 1956 Act, which were saved by para 36(2) of the 1988 Act, must be read together with the restrictions in para 36(2). He believes that the policy behind para 36 (2) was to freeze the scope of the obsolete legislation currently extended to dependent territories, so that if they want to add new subject-matter they cannot keep building it onto the old provisions. Their options are either to have the new legislation (ie the 1988 Act) extended to them or to localise.

4. According to this view, we cannot even use the powers in para 36(2) to make amendments to their Orders equivalent to the amendments to the 1956 Act made by the Cable and Broadcasting Act 1984. This is because the 1984 Act does not merely modify existing provisions of the 1956 Act, it also inserts entirely new provisions to extend the scope of the Act to cable programmes. All we can do under para 36(2) is modify provisions of the 1956 Act which had already been extended to Hong Kong before 1988. It may be that some of the "Minor and consequential Amendments" to the 1956 Act listed in Schedule 5 to the 1984 Act could be made. But I cannot imagine that minor amendments will be sufficient to achieve HKG's purpose, which is to expand the scope of the legislation to cover entirely new subject-matter.

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