When you have the right to take photos

PUBLISHED : Thursday, 19 January, 2012, 12:00am
UPDATED : Thursday, 19 January, 2012, 12:00am


The photo ban saga at Dolce & Gabbana's Tsim Sha Tsui store has stirred debate over a balance between the right to take pictures in public areas and protection of copyright.

Secretary for Commerce Greg So Kam-leung said yesterday that people have the right to take photos in public provided they don't cause a nuisance, while copyright owners also have the right to protect their work from being reproduced.

But that right was exempted if the copyrighted work was included incidentally.

Copyright expert Kenny Wong, a partner at legal firm Mayer Brown, said So's interpretation of the law glossed over the technical issues.

He cited section 71 of the Copyright Ordinance which states that taking pictures, filming, making graphic work and broadcasting the images of certain artistic works on public display does not infringe an artist's copyright. 'But these only apply to buildings, sculptures, models for buildings and works of artistic craftsmanship permanently situated in public spaces,' Wong said.

'These do not include shop window displays.'

However, section 40 on the 'incidental inclusion of copyright material' states that 'copyright in a work is not infringed by including an artistic work in a sound recording, film, broadcast or cable programme'.

It should not be a problem if a window display happened to be captured in a photograph 'but it will be arguable if you take a photo with a store as background to show people that you were there', he said.

Store staff were alleged to have said that mainlanders could take pictures of the shopfront but not Hongkongers, in the interests of copyright.

'If someone wants to copy a clothing design using these pictures, then this is internal [copyright infringement],' Wong said. 'But if it was really to protect their copyrights, why are they discriminating against certain groups of people?'

'This is a lame excuse.'