Photocopying and Fair Dealing

The Copyright Ordinance of the Hong Kong SAR provides exemptions for copying of copyright works in schools under limited circumstances. Photocopying of copyright works should never be the first option adopted in the classroom. We recommend the following approach -

1. Always try to create your own materials. You can then authorise their reproduction to your heart's content.
2. If you really need to copy a work, try to get permission from the copyright owner, publisher or the licensing bodies.
3. Use the exemptions in the Copyright Ordinance to make copies for limited purposes.

Making use of the exemptions

Exemptions can be useful when teachers or students are proposing to copy a very limited passage from a publication. It is important to understand the underlying principles of exemptions, set out in the introductory provisions (Section 37) of Division III of the Copyright Ordinance. The primary consideration is that 'the act (here we are talking of copying) does not conflict with a normal exploitation of the work by the copyright owner and does not unreasonably prejudice the legitimate interests of the copyright owner.'

To decide whether your dealing with a copyrighted work is “fair”, you need to consider all the circumstances, in particular:

• the purpose and nature of the dealing, including whether such dealing is for non-profit-making purpose and whether it is of a commercial nature;
• the nature of the work;
• the amount and substantiality of the portion dealt with in relation to the work as a whole; and
• the effect of the dealing on the potential market for or value of the work.

The following example would be considered 'fair':

• a student copying a small portion of a copyrighted work and incorporating it in his project for illustration with acknowledgement of the source of the work.

But the following example would NOT be considered 'fair':

• a student copying the whole or a large portion of a textbook because he believes the textbook is too expensive (this is not fair dealing because the amount is too great and the market for the book was adversely affected).

Other exemption for reprographic copying

For teaching or learning purposes

Teachers and students are permitted to make reprographic copies of artistic works or passages from literary, dramatic or musical works 'to a reasonable extent' for teaching or learning purpose provided that -

• where a teacher makes the copying, it is done for giving instructions on behalf of an educational establishment;
• where a student makes the copying, it is done for receiving instructions in a specified course of study provided by an educational establishment;
• there is no licensing scheme available in respect of the works being copied; and
• after the copy has been made pursuant to the exemption it is not sold, offered for sale or hired to others.

For examination purpose

A teacher has more latitude to use reprographic copies of literary, artistic or dramatic works where the copying is done solely for the purpose of setting examination questions or communicating examination questions to candidates or answering examination questions. But after the copy has been made for examination purposes, it may not be sold, offered for sale or hired to others.

Research or private study

The Copyright Ordinance of the Hong Kong SAR allows fair dealing in any type of copyright work for the purpose of research or private study. 'Fair dealing' can include copying or any other of the restricted acts in copyright (e.g. performance, recording, adapting). If you translate a reasonable passage of text as an exercise in developing language skills, that would be considered 'fair dealing'. To decide whether an act is 'fair dealing' the law requires you to consider:

• the purpose and nature of the dealing, including whether the dealing is for a nonprofit-making purpose and whether the dealing is of a commercial nature;
• the nature of the work;
• the amount and substantiality of the portion dealt with in relation to the work as a whole; and
• the effect of the dealing on the potential market for or value of the work.

Relationship between the exemptions

Each of the above exemptions operates independently. For example, where an act of copying by a teacher or a student is not covered by the reprographic copying exemption in section 45, the act could still be covered by the 'fair dealing' exemption if all the criteria for 'fair dealing' are satisfied.

Source| https://www.ipd.gov.hk/eng/pub_press/publications/cpr_ed_e.pdf