Wednesday, April 26, 2017

Yahong Li and Graham Greenleaf on China's Copyright Public Domain in Comparison with Australia (new article)

"China's Copyright Public Domain: A Comparison with Australia"
Yahong Li and Graham Greenleaf
Australian Intellectual Property Journal 
2017, Vol. 27, Part 3, p 147
Abstract: A definition of the public domain by Greenleaf and Bond, based on the question “what can users do with works, without obtaining the permission of a copyright owner” and an analysis of it as being comprised by 15 distinct categories of “public rights”, has previously been proposed as necessary and sufficient to describe Australia’s copyright public domain. This article uses this approach to compare Australia’s copyright public domain with that of the very different social and legal system of the People’s Republic of China, and discovered that, compared with Australia, China’s public domain appears rather narrow, at least when only formal legal sources are compared. Out of the eight categories where the two countries differ significantly, Australia’s public domain is stronger in five. The public domain in modern Chinese copyright law is, not unexpectedly, somewhat different from that found in a “western” country such as Australia, but not in the radical way that could be naively expected to stem from arguments concerning China’s traditional philosophy, or its socialist modern history. The harmonising effects of international treaties and the pressures of international trade are the most obvious reasons for the relatively high degree of homogeneity. This comparison also suggests that the definition of the copyright public domain used requires modification in order to include China’s opt-out provisions in relation to free-use exceptions and collective licences. However, the comparison does not suggest that any new public domain categories are needed.

Hualing Fu Comments on Ideological Purge Hitting China Universities with Western Ties (FT)

"Ideological purge hits China universities with western ties"
Emily Feng
Financial Times
25 April 2017
China is stepping up pressure on educational institutions, including many that run joint programmes with leading western universities, as President Xi Jinping’s ideologically infused anti-corruption campaign takes aim at the country’s intellectual establishment. 
     Teams of agents from the Communist party’s Central Commission for Discipline Inspection arrived on the campuses of China’s 29 top universities in the middle of March and will remain there to carry out inspections until the start of May. University presidents and senior administration staff have been told to remain on campus and cancel all travel plans, according to two people familiar with the situation...
     Political security is the predominant concern, and key sources of threat that have been identified are universities, lawyers and civil society groups. We know what has happened to lawyers and NGOs [non-governmental organisations]. Universities are a more recent target,” says Fu Hualing, a law professor at the University of Hong Kong... Click here to read the full article.

Tuesday, April 25, 2017

New Issue: SSRN Legal Studies Research Paper Series (HKU)

Vol. 7 No. 2: 14 April 2017
Table of Contents

Bryane Michael, University of Hong Kong Faculty of Law, University of Oxford
Say Hak Goo, The University of Hong Kong - Faculty of Law

Ernest Lim, University of Hong Kong - Faculty of Law

Hugo Ho-Ting Chu, The University of Hong Kong - Asian Institute of International Financial Law, The University of Hong Kong - Faculty of Law, University College Dublin (UCD) - Michael Smurfit Graduate School of Business, Hong Kong Polytechnic University - Department of Applied Social Sciences

Douglas W. Arner, University of Hong Kong - Faculty of Law
Emilios Avgouleas, University of Edinburgh - School of Law
Evan Gibson, The University of Hong Kong - Asian Institute of International Financial Law

Thomas K. Cheng, The University of Hong Kong - Faculty of Law

Monday, April 24, 2017

Ross Smith on Pensions Clauses in Double Taxation Agreements (AIIFL Paper)

Ross Smith (PhD Candidate)
AIIFL TLRP Tax Comments - Working Paper Series
TTC Working Paper No 1
March 2017
Abstract: Pension accruals for retirement funding are included in domestic assets, then are subject to tax in International transfer transactions, which should not be in the scope of transnational tax avoidance issues. Existing Double Taxation Agreements (DTA) only have a single objective of tax rights, which unfortunately conflicts with the needs of overseas mobile citizens to enable adequate funding of pension retirement income streams, that should function with the ‘Sole Purpose Test’ in respect of SISA1 Legislation under the Australian Constitution’s ‘Pension Powers’ (S51xxiii). An actuarial model may suggest that a funded CPI indexed pension commencing at 66% of pre-retirement salary, should obviate a Government’s liability in the provision of old-age pensions. 
     Regrettably in Australian public administration, there appears to be a co-existence conflict when its taxation regime eliminated its 1946 national pensions scheme that left the Government’s liability unfunded for the provision of old-age pensions. 
     Changing jobs between tax jurisdictions several times before retirement causes pension payments to be taxed and paid out, which is also an opportunity cost to primary capital markets and causes a serious shortage of long duration capital for large scale investment projects. 
    As a partial solution to co-existence conflict, this paper advocates that a ‘Preservation and Portability’ Instrument should be included in Article 17 Pensions Clause in DTAs that preserves pension accruals until retirement age, allows for the tax-free portability transactions between respective tax jurisdictions, supports adequate funding of pensions in retirement, and adds significant economic value to primary capital markets with higher volume, long duration capital formation retention. The retention generates tax revenue as a secondary derivative to successful funding arrangement in the first instance.  Click here to download the full paper.

Syren Johnstone on Hong Kong and the EU Credit Rating Regime (SSRN Paper)

Syren Johnstone
SSRN HKU Faculty of Law Research Paper No 2017/
April 2017
Abstract: Credit ratings issued by credit rating agencies regulated in Hong Kong are serviceable in the European Union (EU) because Hong Kong is recognized for these purposes as an equivalent jurisdiction. The perimeter of Hong Kong’s credit rating regime has recently come under the scrutiny of the Securities and Futures Appeals Tribunal, which has established important boundary lines impacting on the authorization, supervision and enforcement of the credit rating industry in Hong Kong. This article analyzes the case and identifies four elements central to it, namely, the information-based, document-based and act-based perimeters of the Hong Kong regime as well as its primary regulatory objective. It is suggested that the Tribunal’s approach to these elements may represent a material departure of Hong Kong’s legal and supervisory framework from the regime in the EU that could adversely affect Hong Kong’s standing as an equivalent jurisdiction.  Click here to download the full paper.

Sunday, April 23, 2017

Puja Kapai Interviewed in Amnesty International Magazine (Spring 2017)

Puja Kapai was interviewed in Amnesty International Hong Kong's Human Rights Magazine (Spring 2017, Issue 21) on the Right of Ethnic Minorities to Education.  Click here to read the full interview.

Sunday, April 9, 2017

Terry Kaan Urges Caution on Launching Opt-Out Organ Donation Scheme in Hong Kong (SCMP)

"Hong Kong urged to clarify legal issues before launching opt-out organ donation scheme"
Elizabeth Cheung
South China Morning Post
9 April 2017
Hong Kong is not yet ready for an opt-out organ donation scheme as legal issues and further medical matters need to clarified, an expert in the field says.
     Terry Kaan Sheung-hung, co-director of the University of Hong Kong’s Centre for Medical Ethics and Law, issued the caution as health minister Dr Ko Wing-man revealed that the government was thinking about introducing an opt-out scheme to increase the transplant rate.
     Under such a system a person would be considered a willing donor upon their death unless stating an objection in advance.
     The organ donation rate in Hong Kong is among the lowest in the world, with only 5.8 in every million people donating in 2015, compared with 39.7 in Spain. By the end of March more than 248,000 people had registered at the centralised organ donation register.
     Kaan said the city should first legislate the definition of brain death, a condition in which a person’s brain no longer functioned but the heart might continue to beat with the support of a ventilator... Click here to read the full article.

Thursday, April 6, 2017

Proceedings of CCPL's Article 23 Roundtable (Aug 2016) Now Available

In August 2016, the Centre for Comparative and Public Law of the Faculty of Law of The University of Hong Kong organised a closed-door academic roundtable on Article 23 of Hong Kong’s Basic Law, the provision that requires the Hong Kong Government to enact national security legislation. This roundtable is one of the few major academic events on the subject since the Government’s failed attempt to implement the provision in 2003.
     The written proceedings, video recording, participants’ brief, and written submissions are now available here.  The speakers included:
Ms Amy Barrow, The Chinese University of Hong Kong
Ms Cora Chan, The University of Hong Kong
Professor Albert Chen, The University of Hong Kong
Mr Eric Cheung, The University of Hong Kong
Ms Surabhi Chopra, The Chinese University of Hong Kong
Professor Michael Davis, Centre for Comparative and Public Law, The University of Hong Kong
Professor Fiona de Londras, University of Birmingham
Professor Fu Hualing, The University of Hong Kong
Mr Danny Gittings, HKU School of Professional and Continuing Education
Dr Denis Halis, University of Macau
Dr Eric Ip, University of Hong Kong
Dr Huang Mingtao, Wuhan University
Dr Margaret Ng, Barrister-at-Law, Hong Kong
Mr Malik Imtiaz Sarwar, Malik Imtiaz Sarwar Advocates & Solicitors, Malaysia
Ms Puja Kapai, The University of Hong Kong
Professor Lin Feng, City University of Hong Kong
Dr Lo Pui Yin, Barrister-at-Law, Hong Kong
Professor Carole Petersen, University of Hawaii
Mr Benny Tai, The University of Hong Kong
Ms Doreen Weisenhaus, The University of Hong Kong
Professor Simon Young, The University of Hong Kong

Tuesday, April 4, 2017

Farzana Aslam Reflects on Hong Kong's Education System on Children's Day (SCMP)

Farzana Aslam
South China Morning Post
4 April 2017
April 4 marks Children’s Day in Hong Kong, a time for reflection on whether we as a society are doing enough to ensure the well-being of our children.
     There has been much attention on the intense pressure faced by children in the local school system. In order to keep up with the demands of continuous assessment, children have hours of homework to complete daily, at the expense of sleep and play, both of which are fundamental to their growth.
     As a result, education reform is high on the political agenda. Recent calls for the government to scrap the Territory-wide System Assessment (TSA) for Primary Three pupils resulted only in a move to replace it with a Basic Competency Assessment that the government says is much improved... Click here to read the full article.

Saturday, April 1, 2017

Felix Chan Comments on PST Energy 7 Shipping LLC v OW Bunker Malta LImited [2016] UKSC 23 (Int'l Comp Comm L Rev)

"Rights to consume bunkers before payment: neither as a bailee nor as an owner"
Felix WH Chan
International Company and Commercial Law Review
2017, Vol. 28, Issue 3, pp 104-106
Abstract: In PST Energy 7 Shipping LLC and another v O W Bunker Malta Limited and another [2016] UKSC 23, the Supreme Court was called upon to determine whether the contract for the supply of bunkers was a contract of sale of goods between the bunker supplier and the shipowners under s. 2 of the Sale of Goods Act. Despite all the hallmarks of being a contract of sale of goods, the Supreme Court concluded that the agreement was not a contract of sale of goods. The implications behind the reasoning of the “nanosecond” argument are examined.  Contact the author for a copy of the comment.