TNAG-2819-FCO40-4068-Future-of-Hong-Kong-International-Rights-and-Obligations-(IR-1993 — Page 29

sect.

CUNFIDENTIAL

SET 0112

.35

13.

Section 31 is, of course, a provision of a British Act of Parliament which, save for section 31(3), proviso (e), has been extended to Hong Kong. Local legislation which, on its true construction, is subject to the limitations which it imposes is thus also subject to the effect of section 2 of the Colonial Laws validity Act 1865.

14.

The crucial question for us is whether local legislation which is analogous either to the (repealed) 1984 UK legislation on copyright in cable programmes or, alternatively, the provisions in that regard introduced by the CDF Act 1988, would be, or could be, repugnant to the Imperial law affecting copyright currently extending to Hong Kong so as to render it "absolutely void and inoperative".

15.

This issue arose in the Rediffusion case because HKG was proposing to introduce legislation which would have extended the meaning given to the phrase "television broadcast" by the 1955 Act (see section 14(10)) by requiring it to mean also:

15.

"visual images transmitted to the premises of subscribers to a diffusion service over wires or other paths provided by a material substance, together with any sounds transmitted along with those images.

จ

Rediffusion claimed that this enlargement

of the definition of "television broadcast" was one which it was incompetent for the Hong Kong legislature to enact in that it wāj inconsistent with the requirements of section 31(3) of the 1956 Act because it enlarged the scope of the copyright protection afforded by the Imperial Act (at least to television broadcasts, as such). This, it was argued, made it repugnant to the UK copyright legislation which had been extended to Hong Kong. [At the relevant time, it should be observed, Hong Kong was still subject to the Copyright Act 1911 but the introduction of the 1956 Act

then being contemplated. The local legislation would have been an adjunct to the extension of the 1956 Act.]

17.

kdy

Both the Full Court and the Priv Council were principally concerned with whether an injunction could issue to restrain the Legislative Council from passing a bill in the terms cited above. Both courts were at pains to emphasise that LegCo alone does not constitute the complete legislature. They concluded that the action was misconceived even if any ordinance which might be enacted as a result of LegCo's deliberations was repugnant to Imperial legislation and thus struck down by the Colonial Laws Validity Act. Indeed, in the

in the Privy Council, counsel for HKG conceded, for the purposes of those proceedings only, that if the proposed Bill were in fact enacted the provision which was being attacked would indeed

indeed be void and inoperative for repugnancy to the 1956 Act.

CONFIDENTIAL