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Intellectual Property for Social Media Influencers

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88% of Hong Kong population is using social media, and this number is growing every minute. It is no surprise that social media has become a lucrative business. Social media influencers (“Influencers”) or key opinion leaders (“KOLs”) are popular and powerful – they create tight bonds with their followers and have the ability to influence their perceptions of brands and hence their spending behaviours. As a result, they are now an important marketing channel for many local and foreign brands. Influencers partner with these brands and generate income by way of endorsement or other forms of support through their profiles on Instagram, WeChat, Facebook, YouTube, TikTok, and other social media networks.

Influencers and KOLs build up and grow their reputations and market values by creating original contents, where multiple intellectual property rights may subsist, that should be managed properly to preserve and maximize their values. At the same time, Influencers and KOLs may overlook the potential risk of infringing others’ intellectual property rights when creating their posts and articles given their contents often ride on photographs and videos officially released by the leading brands in the market which carry protectable intellectual property rights.

Why influencers and KOLs should be concerned about intellectual property rights (“IPR”) of themselves and others?

Intellectual property rights infringements on the internet, unfortunately, are common. If trade mark and copyright are protected with registration, it is easier to enforce them in the event of a dispute, as compared to unregistered rights.

Registration of intellectual property rights makes it clear to others that they are protected. This helps to avoid plagiarism – if other influencers know that the content is protected, they won’t in the first place replicate the content.

Registered intellectual property rights give a social media account more credibility – followers and brands find the contents more trustworthy and risks free.

What types of intellectual property should influencers register?
Copyright

Copyright protects the original influencer’s works of authorship: photographs, videos, posts, art, sound recordings, and other types of content. The social media influencer or KOL is the owner of the content that he / she creates, and can freely distribute, make copies and commercially exploit the original works. Others must get permission or license before using such copyrighted contents unless a legal based exception, such as “fair use”, applies.

In Hong Kong, it is not necessary to register a copyrighted work as the copyright subsisting therein automatically arises upon the creation of an original work. Having said that, from the perspective of enforcement, the social media influencer may wish to register or deposit a copyright work if it is of significant value in the event it is stolen by a third party.

Trademark

Trademark is a design, logo, phrase or any graphic representation that differentiates one brand from the others in the marketplace. The personal name or nick name of the social media influencer or KOL is the brand name that should be property protected by trade mark registration to preserve and generate its value.

Website domain

The website domain in itself does not carry an intellectual property right yet the domain name usually contains a word, a name or a phrase forming the brand name of the social media influencer or KOL which can be registered as a trade mark.

Intellectual property policies of different social media platforms
The future of protecting intellectual property on social media

To grow exposure and reputation, social media influencers or KOLs often create different types of original contents which are highly susceptible to legal risks. With the internet evolving at such a fast pace, we anticipate infringement of IP right in social media online platforms will increase taking new and more sophisticated forms. Hence, it is imperative for social media influencers and KOLs to be more cautious and proactive to protect their original works going forward. It should not be taken for granted that because nothing bad has happened so far and therefore they will continue to be safe going forward.

It is also important to respect others’ IP rights and not to replicate others’ contents without prior permission.

If you would like to know more about protecting social media influencers or KOLs’ intellectual property rights, please contact us.

Disclaimer: This article is for reference only. Nothing herein shall be construed as legal advice, whether generally or for any specific person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

The Succession of Digital Assets: NFTs, Cryptocurrency or Online Accounts

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There has been an increase of wealth distributed in various forms of digital assets or platforms.  For example, NFTs, cryptocurrencies such as Bitcoin or Ethereum or even online social media or gaming accounts may have substantial value in them. Investment is no longer restricted to its traditional forms, leading to the emergence of many alternative assets investments, most of which are done on an anonymous basis.

To consider how to plan the succession of digital assets, it would be useful to distinguish between digital assets that are transferable and those that are non-transferable.

Transferable Digital Assets

Transferable digital assets include cryptocurrency, NFTs, funds kept in online accounts such as Alipay or WeChat pay.  These can generally be passed down by including provisions in a will. Most countries may treat them the same as any traditional assets (such as bank accounts or real estate property) and require a form of grant of representation to access the digital assets. 

Some companies may even provide the feature on their software platform whereby the user can designate an individual as an emergency contact to receive the data in the user’s account under conditions specified by the user, such as upon the user’s death or incapacity. This feature would potentially allow an executor or trustee nominated in the user’s will (if there is one) to gain access to valuable personal, financial and business information after the user’s death even before presenting an authenticated grant of probate to the company, as well as to act on such information for the benefit of the user’s next generation pursuant to the will.  For example, Apple has a policy known as Legacy Contacts where the person who is set as a Legacy Contact can access photos, messages, notes (but not passwords, music, subscriptions, etc.) with just the access key generated when the Legacy Contact was set and the death certificate.

Given the popularity of digital assets, popular trading platforms for cryptocurrency and other digital assets already have some form of structured policy for dealing with account holders who have passed away.  Some trading platforms have adopted the traditional requirements of dealing with any other physical asset, i.e. requiring beneficiaries to provide the grant of representation, death certificate and other supporting documents to allow access into the deceased person’s account, whilst other platforms give their users options to complete their know-your-client procedure which allows the platform to identify the person using the account, and therefore assist beneficiaries in accessing such accounts.

However, as currently there is no uniform standard on how to pass on digital assets, the best and simplest method is to make sure your beneficiaries are able to find out not only what digital assets you own.  Importantly, and due to the highly secured and encrypted nature of digital assets such that a form of password or key is required to access the assets, it may be important to store such passwords in a safe place but also make your beneficiaries aware of how to access such passwords and keys.

Non-transferable Digital Assets

Non-transferable digital assets are usually digital assets that are licensed for personal use, but not owned in a legal sense.  These include email accounts, social media handles and accounts or mobile app accounts and information contained therein. These generally cannot be passed down simply by a will and may require non-conventional estate plans.

Despite the personal nature of these non-transferable Digital Assets preventing them from being passed down, it is possible to preserve these in accordance with the wishes of the deceased person.  For example, Instagram offers a service known as “memorialising” the deceased person’s account, which allows the memorialized account to be kept as if it was frozen in time.  Facebook offers a further service that allows the person to designate a legacy contact to manage the memorialized account to a certain extent (such as writing a pinned post to share a final message or to update the profile picture, but not allowing removing or changing past posts etc.).  YouTube also provides an estate planning service known as Inactive Account Manager, which allows the person to designate who should have access to the information or whether the account should be deleted.  Otherwise, individuals may need to go through hoops of customer service and in the end not even be able to access any personal or important information.

Inheritance tax considerations

Digital assets (in particular cryptocurrencies) can fluctuate in value rapidly.  In Hong Kong, where estate duty has been abolished, this generally does not create any concern.  However, digital assets may also be based in other jurisdictions that impose inheritance tax, and therefore the applicable jurisdiction of the digital asset or the company through which the digital assets are held before investing in such should be given consideration and taken into account when conducting estate planning.

Conclusion

With diversified forms of valuable assets and technological advancements offering new solutions to asset succession and security, individuals face more considerations than ever in wealth protection and succession.  It is highly recommended that a legal framework should be carefully planned to ensure their wealth can be preserved free from unwanted interference.

Disclaimer: This article is for reference only.  Nothing herein shall be construed as legal advice, whether generally or for any specific person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Last-Minute Tax Planning before Migrating from / Temporarily Moving Out of Hong Kong

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Tax consideration, while an essential and integral part for any migration planning,  is unfortunately often neglected part or left till the last minute, likely because Hongkongers have been too used to or sometimes even “spoiled” by the simple and low tax system in Hong Kong. The hard reality, however, is that the popular emigration destinations such as the UK and Canada adopt a more complex and heavier tax system, the concept of which is alien to most Hongkongers.

What are the top last-minute tips for pre-immigration tax planning?

Destination countries’ tax rates are generally much higher than those of Hong Kong. To avoid tax “disappointment”, tax planning might efficiently minimize your tax exposure. Many of the tax-saving moves, however, can only be done while you are still a Hong Kong tax resident. It is thus advisable to allow sufficient time before your actual departure to consult tax lawyers.  The more preparation time you allow, the more you can achieve. If you are leaving in a rush and only last-minute planning could be done, we would suggest that you at least go for the following:

Updating Current Market Value of existing investment

Unlike Hong Kong, most destination countries impose tax on residents’ worldwide income, meaning that even your investment gains generated in a foreign location (i.e. Hong Kong) could be subject to local tax. This led to much concern by Hongkongers as many of them accumulated wealth via land appreciation of their real estate investment in Hong Kong. The gains could potentially be subject to worldwide tax. The good news is that most of these destination countries do not retrospectively tax the gains before the person becomes its tax resident on the condition that one could prove that the gains were generated while he/ she was still a Hong Kong tax resident. For those migrating to Canada and the UK, this would usually mean sufficient record to show the current market value of the investment, such as surveyor reports immediately prior to entrance of destination countries. For those migrating to the US, it should be noted that such valuation exercise (or what is known as the “Step-up in basis” in the US) cannot be done by a nominal way and must be associated with real transactions.

Executing Will for Hong Kong assets

Inheritance tax could be as high as 40% in the UK which is quite an astronomical figure for Hongkongers since estate duty in Hong Kong has been abolished from 2006 onwards. While there is no inheritance tax in Canada per se, in effect the tax exists because the CRA charges on one’s gain at the time of his/ her death by regarding the event as deemed disposition of one’s assets. The Hong Kong Will allows you a possible argument that Hong Kong remains your place of domicile and thus no estate duty should be imposed. The argument is especially strong if you are only a tax resident of the UK but have not acquired domicile there (i.e. a UK non-dom).

For those who wish to continue employment and receive salaries from Hong Kong, will their salaries be subject to tax in their new country of residence?

The UK and Canada both tax their residents on worldwide income, which means that any revenue, including rental income from HK property, salaries from HK employment, will be subject to local taxes.

Relief is, however, available thanks to the Double Tax Agreements (“DTA”) between Canada and Hong Kong. Under the DTA, Canadian tax residents (with dual residency in Hong Kong) will only be subject to taxation in Hong Kong on salaries deriving from a Hong Kong employment or profits from a business carried on in Hong Kong. Further, for withholding tax on dividends, that will generally be limited to a maximum of 15%.

As for the UK, a resident not domiciled in the UK (referred to as “non-dom”) may also benefit from special taxation rules on foreign-sourced income. However, British citizens returning to the UK cannot claim this “non-dom” status.

Many people left HK in a rush amid the recent Covid-19 outbreak merely temporarily to stay away from the pandemic. Many of them are under Hong Kong employment contracts. Are there any tax implications for them and their employers?

An employee staying in another country for too long may be unintentionally construed as tax resident of that country solely due to the number of days he/she stays there. We have a client who originally intended to pay a short visit to Canada only but turned out staying there for a year due to sudden outbreak of Covid and travel restriction. In usual circumstance, a continuous stay of over 183 days in a tax year in Canada would be deemed tax resident there and thus subject to worldwide tax. Certainly, Covid was a peculiar external factor. We were of the view that given the existence of other factual patterns, client does have an arguable defence to resist the suggestion that he was a Canadian tax resident.

Private companies should also pay close attention if there are HR arrangement in place allowing employees to work from another country while under a Hong Kong employment. Activities done by the employees in such foreign countries might unintentionally be construed as the companies having presence/ establishment there. If such activities generate much profit for the companies, the employers might even potentially be subject to local corporate taxes where the employees work. It is always advisable to consult your tax advisers if in doubt.

OLN provides a range of migration, corporate restructuring and tax advisory services.  If you have any questions on the above, please contact us.

Disclaimer: This article is for reference only.  Nothing herein shall be construed as legal or tax advice, whether generally or for any specific person. Oldham, Li & Nie shall not be held liable for any loss and/or damage incurred by any person acting as a result of the materials contained in this article.

Copyright (Amendment) Bill 2022 gazetted for LegCo reading on 8 June 2022

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The Copyright (Amendment) Bill 2022 (https://www.legco.gov.hk/yr2022/english/brief/citbcr070928_22020525-e.pdf) was gazetted last Friday after the 3-month public consultation. A very aligned view of IP practitioners and stakeholders is to have the new Copyright provisions enacted as law without any further delay. 

The key 5 legislative proposals are:
 
1. To introduce an exclusive technology-neutral communication right for copyright owners in light of technological developments;
 
2. To introduce criminal sanctions against infringements relating to the new communication right;
 
3. To revise and expand the scope of copyright exceptions to allow use of copyright works in certain common Internet activities; facilitate online learning and operation of libraries, archives and museums; and allow media shifting of sound recordings, etc;
 
4. To introduce “safe harbour” provisions to provide incentives for online service providers to co-operate with copyright owners in combating online piracy and to provide reasonable protection for their acts; and
 
5. To introduce two additional statutory factors for the court to consider when assessing whether to award additional damages to copyright owners in civil cases involving copyright infringements.

The Secretary for Commerce and Economic Development will introduce the Bill into LegCo for first and second readings on June 8. The LegCo Panel on Commerce and Industry supports the legislative proposals. The new Copyright law is expected to launch for the summer!

Relocating to France with Your Domestic Helper:  How to Obtain a Visa

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Whether you plan to take your domestic helper on holiday to France or to relocate permanently, securing the correct visa for her is of the essence. Indeed, unlike a few Southeast Asian countries where your domestic helper is allowed to join you for a short tourist stay, to be authorized to work in France, your domestic helper will need to apply for one of the following specific visas:

  • The short-stay visa has a maximum validity period of 180 days with a consecutive presence (or not) equal to at least 90 days; or
  • The long-stay visa is equivalent to a 12-month residence permit.
1. The short-stay visa:

For this type of visa application, the French consulate in Hong Kong will be your first point of contact.

An application for a French visa for your domestic helper has to be submitted via the official visa website for France (https://france-visas.gouv.fr). More specifically, domestic helpers traveling with their employers must select the visa category « business » (under « your plans » in the visa wizard), then « employed in the service of a foreign or French national » as the main purpose of stay. A tourist visa is not applicable, even for a very short stay because the applicant will be working in France. Therefore, it is important to make sure that this employment is lawful.

It is recommended to file the application more than three months before traveling. Even though you wish to assist your domestic helper in the process of preparing the file and the materials for the visa application, the appointment at the French consulate must be booked under the applicant’s name only (the domestic helper), and failure to do so will result in the applicant not being allowed into the Consulate appointment. As the employer, you are not allowed to be present during the interview.

Once again, when in France, the employer has to comply with French labour laws which are very different from Hong Kong. Among other things, you have to make sure that her salary will be aligned with the French minimum wage and that she will not work more than the maximum working hours as per French law. In addition, you will have to pay the social security contributions arising from this employment as undertook in a “sworn affidavit” that you will have to sign for the visa to be granted.

2. The long-stay visa:

Obtaining a long-stay visa  is a longer process and the procedure is more complex as this will allow your domestic helper to live in France for one year and she can thereafter then  apply for a residence permit.

The employer has to demonstrate that he intends to bring a foreign worker to France because he cannot find any suitable candidate in France to meet the criteria of the position. This is why he first has to conduct a search for candidates for the position sought (i.e. a domestic worker) in the city where he plans to live, describing the qualities required (for example, someone who speaks English fluently, who is able to look after several children, who can do the housework…). This search for a candidate is usually carried out through “Pôle emploi” and takes at least 3 weeks. Once the search is completed, the employer must be able to prove that a candidate, with the required qualities, has not been found (which means that nobody applied for the job or that he conducted interviews but did not find any suitable applicant). “Pôle emploi” will then provide him with a statement of unsuccessful search.

Once this document is obtained, the employer will have to apply for a foreign worker permit on the official portal of the “Ministère de l’Intérieur” (https://administration-etrangers-en-france.interieur.gouv.fr). This second step generally takes several months and involves providing information about the employer (working contract, resources…), the employee andthe qualifications of the job. If the “Ministère de l’Intérieur” allows the employment of the foreign worker, they will grant the employer a document named “Autorisation de travail (resident hors de France)” for the domestic helper.

After the two steps described above have been successfully completed, an interview will have to be conducted for the domestic helper at the French consulate in Hong Kong to finalize the visa application.

It has to be noted that once the visa has been obtained, it is compulsory for the domestic helper to activate her visa with the “Office Français de l’Immigration et de l’Intégration (OFII)” within three months of her arrival in France. She will also have to undergo a medical examination and sign a “contrat d’intégration républicaine” in which she will undertake to follow training courses to promote her integration in France (which will be important if the domestic helper subsequently wishes to obtain a residence permit at the end of her long-stay visa).

Of course, as soon as the domestic worker commences working in France, the relationship with the employer will be governed by French labour laws and the employer will have to comply with French rules (employment contract, pay slips, minimum wages, working time and social contributions.).

The procedure to follow to get a French visa for a domestic helper is clearly an arduous task but it is worth consideration as it can help your family maintain its balance and can strengthen the bond you have with your helper.

OLN IP has once again been shortlisted in ALB IP Rankings 2022

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OLN IP - Asia IP Ranking 2022

Our OLN IP team has been listed as a Tier 1 firm for Copyright / Trademarks and as a Tier 2 firm for Patents in the Asian Legal Business (ALB) “Asia IP Rankings 2022” for Hong Kong. To view the full rankings please click here.

OLN IP was established on 1 January 2020, and we are particularly proud that our new venture has received this recognition from ALB for the second time.

OLN IP is led by Benjamin Choi and offers tailored, commercially-driven advice to intellectual property owners, across the different IP asset classes, including IP portfolio management.

About ALB Asia IP Rankings

ALB IP Rankings recognise the top firms for Intellectual Property in Asia. The rankings draw information from firm submissions, interviews, editorial resources, and market suggestions to identify and rank the firms.