Computer software is protected by copyright under Copyright Ordinance s4(1) as literary works. Copyright does not subsist in a literary work until it is recorded or fixed. Programme in main memory is arguable not recorded, thus not fixed. It must also be original in the sense that it is originated from the author (and not copied from another work) and has involved the author’s skill and labour.

Computer programme is not defined in the Ordinance but it is well-settled that it includes source codes. In fact it is stated in TRIPS, Art 10(1) "computer programmes, whether in source or object code, shall be protected as literary works under the Berne Convention". Since TRIPS is binding on HK, source code should be protected by copyright as well.

	Term of Protection
	Right of the Computer Programme Copyright Owner
	Special Exemptions for the Lawful User of a Computer Programme
	Secondary Infringement
	Infringing Copies

Copyright arises automatically and does not require registration to award protection. According to s17(2), the term of protection is the life of the author plus 50 years.

For there to be a valid contract, there must be:

	1.	copy the programme
	2.	issue copies to the public
	3.	rent copies to the public
	4.	make available copies to the public
	5.	perform the programme in public
	6.	make an adaptation
	7.	do any of the above in relation to an adaptation

Doing, or authorizing another to do, any restricted act without licence constitutes primary infringements for which ignorance is no defence.

An otherwise valid contract may be rendered void or voidable in the following situations:

	1.	back-up which is necessary for his lawful use.
	2.	copying or adapting which is necessary for his lawful use.
	3.	copying or adapting for correcting errors in the programme.

Commercial dealings with copies knowing, or having reasons to believe, that the copies are infringing. Knowledge required is actual knowledge or notice of facts such as would suggest to a reasonable man that a breach of copyright was being committed. In addition to civil liabilities, most secondary infringements have criminal liabilities.

Generally, a copy is infringing if its making constituted an infringement. A copy is also infringing if it has been or proposed to be imported into Hong Kong and its making in Hong Kong would have constituted infringement or a breach of an exclusive licence.