Criminal Enforcement of IP in Hong Kong

Abstract Hong Kong’s intellectual property (IP) enforcement regime places a significant emphasis on civil remedies rather than criminal or administrative ones, reflecting the government’s view that IP is a private rather than a public right. Nevertheless, as a member of the World Trade Organization (WTO), Hong Kong is obliged to adhere to the requirements of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which requires member states to provide adequate deterrents, including civil and criminal remedies, to IP violations occurring within their territory. The TRIPS does not compel members to impose criminal penalties for all forms of IP infringement; rather, it mandates such penalties only for instances of wilful trademark counterfeiting and copyright piracy conducted on a commercial scale. Accordingly, in Hong Kong, the only criminal offences for IP infringement arise under the Copyright Ordinance and the Trade Description Ordinance. These provisions are meticulously aligned with Hong Kong’s obligations under TRIPS. This chapter delves into criminal IP enforcement in Hong Kong, offering a nuanced exploration of the penalty provisions in these two laws. Furthermore, it addresses critical challenges and controversies that currently beset the criminal IP enforcement regime. Among these is the concern regarding the excessive protection granted to copyright owners through criminalization. The chapter then considers the initiatives aimed at extending criminalization to infringements against other types of IP.