TNAG-2819-FCO40-4068-Future-of-Hong-Kong-International-Rights-and-Obligations-(IR-1993 — Page 56

K

CODE 18-77

To:

MR HOPTROFF

IPP2

From:

DALEEP S MANGAT

Sol C4

Room 108

10-18 Victoria Street

Tel: 215 3472

20 September 1993

Reference

CC:

Mr Sugden Mr Britton

IPP

Mrs Sullivan

IPP1 IPP1

HONG KONG: APPLICATION OF COPYRIGHT PROVISIONS TO CHINA

I refer to Mr Sugden's faxed minute of 16 September, which I regret I was not able to attend to earlier due to my absence on leave.

2 The arguments advanced by me on the questionable vires of the Copyright (Hong Kong) (Amendment) Order 1990 (SI 588), with regard to 'variation' purporting to transfer to the Governor in Council the powers exercisable under the 1956 Act by Her Majesty in Council, apply equally, I think, to any 'variation' seeking a new power or the application of a new subject-matter contained in the 1956 Act which had not been transferred or extended to the dependent territory in question.

3

Assuming that that view is untenable (I would welcome arguments that would demonstrate any weaknesses in it, so as to make life easier for us and those in the dependencies), the position, unfortunately, remains unchanged with regard to the Copyright (International Conventions) Order 1979 (SI 1715) and the several amending Orders ending with SI 1987/2160. The vires for an amendment to the 1979 Order to make the same applicable to China and thereby to extend the Order as so applied to China to Hong Kong and other dependencies as listed in eg the Schedule to the 1987 Order, is not a variation of the 1956 Act permitted under paragraph 36(2) of Schedule 1 to the 1988 Act.

4 Quite apart from the fact that the 1979 Order (and all its amendments) was revoked by the Copyright (Application to Other Countries) (No. 2) Order 1989 (SI 1293), suggesting thereby that, at least in relation to the UK, the Order ceases to have effect, the difficulty in respect of vires is that paragraph 36(2) of Schedule 1 refers to Orders in Council in force which extend provisions of the 1956 Act to any dependent territory. It is very questionable that the recognition of a Berne member by an Order in Council (pursuant to our international obligation to protect works of the new member) is an extension of a provision of the 1956 Act as contemplated by paragraph 36(2). The earlier Orders (all listed in the revocation