|
|
| |
Hong Kong and intellectual
property
By Gary LaMoshi
HONG
KONG - As anyone who's taken a walk though Beijing's
Silk Alley or the Golden Computer Centre in Hong Kong's
Sham Shui Po can testify, rampant intellectual-property
fraud on everything from Prada to Paramount Pictures to
PlayStation costs the owners of patents, trademarks and
copyrights billions in Greater China. Lack of suitable
protection also constitutes a disincentive for investors
in creative industries in Hong Kong, which should be
their favored base to reach Chinese in the mainland,
around Asia and throughout the world.
So you'd
think that the Hong Kong government agency in charge of
encouraging investment from overseas would be at the
forefront of the battle against copyright piracy,
starting with being absolutely scrupulous in its own
dealings with vendors. After all, pirated software or a
HK$10 (US$1.30) copy of Bad Boys II would undermine the
government's credibility when it comes to its
international commitments to enforce intellectual
property laws.
It's no surprise, then, that
InvestHK, the government's inward-investment bureau,
successfully defended itself against charges of
copyright infringement in a HK$50,000 case decided on
August 13. "Our department has always respected
copyright and behaved honorably under every contract for
service with every supplier without exception," InvestHK
director general Mike Rowse wrote in response to
questions.
One little, two little, three
little brochures ...
East West Productions made
an agreement with InvestHK to design and write brochures
aiming to encourage businesses to locate in Hong Kong,
the way East West's principal Merle Linda Wolin had back
in 1995. (Full disclosure: Wolin and I were both
producers at the same Hong Kong television network
during one year in the mid-1990s.)
Wolin
produced seven brochures for InvestHK, each targeting a
different industrial segment. But InvestHK produced an
eighth brochure that it didn't tell Wolin about. "I was
waiting in someone's office at InvestHK and happened to
see it on his desk," Wolin recalled. "What a shock to
see my work pirated!"
That wasn't the way Invest
HK saw it, though. The agency contended it was within
its rights to use the material it bought from East West
as it saw fit. So what did the contract say?
It
turns out that the two sides had only a verbal agreement
about the brochures. It's hard to believe that Hong Kong
government regulations permit such informality on a
contract in excess of HK$100,000 (US$12,820).
More to the point, that's no way for people to
deal with intellectual-property rights. Standard
contracts for writers (with newspapers or magazines, for
example) clearly spell out whether or not the
publication is purchasing all rights to the material.
Neither East West nor InvestHK wins points for
professionalism in this case.
Trust, but
verify
As a result, InvestHK found itself, as
Rowse put it, "negotiating to buy the copyright we
thought we already had". Wolin - one of the overseas
investors in Hong Kong that InvestHK is supposed to
nurture - found herself saddled with concerns about the
agency's honesty with her. She said her experience with
the bureau has cast doubt on her plans to apply for
permanent residency in Hong Kong.
The two sides
drew up a written contract to assign all rights to the
brochure materials to InvestHK. Wolin asked InvestHK
associate director general Simon Galpin "explicitly"
whether the agency had produced any more brochures
without her authorization. He said no, according to
Wolin.
Wolin asked again "because, as I told him
the first time around, I needed to be paid for every
single brochure produced illicitly by InvestHK before I
would sign. He again said no, 'No other brochures have
been produced with your materials.' I took him at his
word."
That was Wolin's big mistake, the court
ruled.
Memory lapse
Wolin signed the
contract and received a payment of HK$30,000 for all
rights to use the materials. Then she discovered that
InvestHK had in fact produced a ninth brochure before
she assigned the copyright. She sued InvestHK in small
claims court for HK$50,000, claiming that Galpin's
misrepresentation voided the contract.
Galpin,
who has been unavailable for comment since the verdict,
told the court he "forgot" the brochure that Wolin later
uncovered.
Small Claims Tribunal deputy
adjudicator Clement Lee ruled in favor of the
government. On the key question of Galpin's memory
lapse, Lee declared, based on Wolin's education and
experience, she should have known better than to take
his word: "In a nutshell, it is unreasonable and
unlikely that one would rely on the said
misrepresentation."
A news release from InvestHK
after the verdict crowed, "This case demonstrates that
intellectual-property rights in Hong Kong are respected.
It also shows that our sophisticated and efficient legal
system is well prepared to solve any disputes. This is
one of the many advantages Hong Kong offers to
multinational companies investing in our city."
The Hong Kong Journalists Association (HKJA),
which followed the case and is assisting Wolin with a
possible appeal of the verdict, expressed concern over
the livelihood and freedom-of-expression issues the
ruling raised, as well as the government ethics on
display in the case. "It is appalling that government
was unable to recognize it was in the wrong," HKJA
press-freedom subcommittee chairman Cliff Bale said.
InvestHK head Rowe disagrees: "The verdict is a
completely just one. Ms Wolin was paid in full for her
writing and paid in full for the copyright relating
thereto."
Rowse and the courts agree that the
government didn't owe her the truth about her work and,
thanks to Lee's ruling, it didn't owe her HK$50,000 -
that's US$6,427 - either. Investors will decide whether
that's a good deal for Hong Kong.
To me, it seems an awfully low price for a
reputation.
(Copyright 2003 Asia Times Online
Co, Ltd. All rights reserved. Please contact content@atimes.com for
information on our sales and syndication policies.)
|
| |
|
|
 |
|
| |
|
|
|
| |
|
|
|
|
|
