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   Following is a question by Dr the Hon David Li Kwok-po and a written reply by the Secretary for Constitutional and Mainland Affairs, Mr Stephen Lam, in the Legislative Council today (May 19):

Question :

   I have received a complaint from a member of the public that recently a government department has refused his request under the Code on Access to Information (the Code) for a copy of a document in the Government's possession, on grounds that the requested document was covered by copyright. According to section 57 of the Copyright Ordinance (Cap. 528), for a work which has for any purpose in the course of public business been communicated to the Government, the Government may "copy the work, or issue or make available copies of the work to the public without infringing any copyright in the work". Yet, it also states that "this section has effect subject to any agreement to the contrary between the Government and the copyright owner". In this connection, will the Government inform this Council:

(a) what constitutes an agreement under the aforesaid section for the purpose of the Code;

(b) whether, in the event that no agreement exists, it is the Government's normal practice, upon receipt of a request for information over which copyright exists, to write to the copyright owner to seek permission to copy the work under the Code and, if such permission is not granted, to treat such refusal as an agreement not to allow copies to be made; if so, whether it has assessed if such practice is in line with the spirit of the Code; and

(c) among the requests for information received by the Government last year, of the number of those which were related to work covered by agreements between the Government and the copyright owners and, among them, the number of requests for information which were refused by the Government for reasons of copyright under the Code?

Reply:

President,

(a) and (b) The Code on Access to Information (the Code) enshrines the policy that the Government will make available information that it holds, unless there are valid reasons under the Code to withhold the information. One of the reasons stipulated in Part 2 of the Code is legal restrictions, i.e. requests may be refused for information the disclosure of which would constitute a contravention of any law which applies in Hong Kong.

   Section 57 of the Copyright Ordinance provides a limited and specific exception to the Government where it may, subject to certain conditions set out in the same section, copy a copyright work that belongs to a third party, or issue or make available copies of the work to the public without infringing any copyright in the work. The conditions include: such copying, issuing or making available copies of a work must be for the purpose for which the work was communicated to the Government, or any related purpose which could reasonably have been anticipated by the copyright owner, and that the work has not previously been published otherwise than by virtue of section 57 of the Copyright Ordinance.

   Moreover, it is expressly provided under section 57(5) that the exception is subject to any agreement to the contrary between the Government and the copyright owner. The "agreement" here refers to an agreement which prohibits the Government from copying the work or issuing or making available copies of the work to the public. Where there is such an agreement, the Government cannot invoke section 57(2) to copy, issue or make available copies of the work to the requestor of information. On the other hand, where there is no such an agreement, whether to copy, issue or make available copies of the work to the requestor of information will be considered on a case-by-case basis.

   One of the factors to be considered is whether the request is "third party information". Under the Code, requests for information may be refused if the information is held for, or provided by, a third party under an explicit or implicit understanding that it would not be further disclosed. However, such information may be provided to the requestor with the third party's consent.

(c) The Constitutional and Mainland Affairs Bureau collates statistical returns from government bureaux and departments on requests received and processed under the Code, including the number of refusal of requests for information and the reasons concerned under Part 2 of the Code.

   In 2009, bureaux and departments processed a total of 1,676 requests for information, 94 per cent (1,580) of which were met in full, three per cent (48) in part, while another three per cent (48) were refused. The refusal of the requests for information in whole or in part was based on reasons specified in the Code. About eight per cent of the refusal cases were based on the reason of legal restrictions and 27 per cent were based on the reason of third party information. Both reasons may apply to cases involving copyright. However, we do not keep a separate breakdown which can show the number of refusal cases involving copyright reasons.

Ends/Wednesday, May 19, 2010