Hong Kong has its new Copyright Tribunal Rules: How the New Rules affect you
After a lengthy consultation with the professional bodies, copyright licensing bodies and other stakeholders, the Hong Kong government finally implemented the new Copyright Tribunal Rules, Cap. 528D (the “New Rules”) which took effect on 1st May, 2017 therefore replacing the old rules, Cap. 528C (the “Old Rules”).
Copyright Tribunal and its functions and problems
The Copyright Tribunal is a quasi-judicial body established to resolve and adjudicate disputes in relation to the use of copyright materials, usually between users and licensors/licensing bodies*. Anyone who considers terms of a licence unreasonable or has been denied a licence may refer the matter to the Copyright Tribunal. However, resorting disputes and other matters to the Copyright Tribunal has not been popular in Hong Kong as most people would still resort to court proceedings and other dispute resolutions through their legal representatives. The Copyright Tribunal in the UK experienced the same problem. It was found in the UK that the lack of popularity was largely due to the cumbersome rules and procedures and the lengthy adjudication process under the rules which the Old Rules in Hong Kong modeled on.
In 2010, the UK Copyright Tribunal adopted a new set of rules to improve case management procedures to ensure that cases would not be subject to disproportionate costs and delays thereby improving small businesses and individuals’ access to the Copyright Tribunal in the UK even without legal representations.
* These bodies act for groups of right holders such as songwriters or authors.
The New Rules were made, after having digested the experience observed from other countries and learned from the Civil Justice Reform, to promote and encourage the use of the Copyright Tribunal by making proceedings as flexible, convenient, and cost-effective as possible for both legal practitioners, litigants in person and authorized agents before resorting their matters to courts.
Guiding Principles for the Change
The Hong Kong government realized that the cases to be heard before the Copyright Tribunal are intended to be less formal than court proceedings; therefore, it did not blindingly follow the entire practice and procedure of the courts but the main aspects of the Civil Justice Reform were taken into consideration when making the New Rules namely: to maximize the cost-effectiveness of the procedures; to ensure each case is dealt with as expeditiously as is reasonably practicable; to facilitate early settlement of disputes; to ensure fairness and fair allocation of resources of the Copyright Tribunal.
The most significant changes that are adopted in the New Rules are summarized below: –
- The New Rules now require use of statements of truth to verify the claims of the parties. If a party has made a false statement in a statement of facts, witness statement or expert report verified by a statement of truth without an honest belief in its truth, the Copyright Tribunal may order the defaulting party to pay costs of another party for the whole or part of the proceedings;
- The Copyright Tribunal will now have powers to actively manage each case by empowering the same to convene case management conferences and pre-hearing reviews to give appropriate directions including but not limited to encouraging the parties to mediate in appropriate cases (though not compulsory) and issues relating to evidence;
- The New Rules now set down one standardized set of procedures and forms for all types of applications as opposed to having different forms and procedures for various types of applications under the Old Rules;
- The New Rules now allow all proceedings not involving the final determination of an application to be heard and determined by a single member of the Copyright Tribunal, hence expediting the entire process; and
- The New Rules now grant the Copyright Tribunal power to issue practice directions from time to time to regulate its administrative matters and streamlines the procedures based on its further observations and experience.
With simplified and streamlined procedures under the New Rules with a few pointers taken from other countries, legal practitioners and small businesses and individuals are encouraged to consider resorting licensing disputes to the Copyright Tribunal as we are expecting a more flexible, cost-effective and time efficient adjudication system under the New Rules.
Authors : Alan Chiu, Managing Partner
Sander Ting, Consultant
Date : 8 May 2017