28 May 2015
CEPA 2015 – Free Trade with Guangdong in Cultural and Creative Services
The new CEPA subsidiary agreement looks set to further open up Guangdong’s cultural and creative services market for Hong Kong companies.
Hong Kong’s cultural and creative industries (CCI)  form a very dynamic part of the local economy, not just in terms of GDP contribution and employment numbers, but also in terms of the innovations that trickle down the respective value chains along with the knowledge-based products or services . Over the years, in line with this, CEPA has introduced a substantial number of positive-list liberalisation measures with regard to constituent CCI domains. With a few exceptions, The Agreement between the Mainland and Hong Kong on Achieving Basic Liberalisation of Trade in Services in Guangdong (“Guangdong Agreement”) adds still more liberalisation measures for Hong Kong service suppliers (HKSS) engaged in various CCI domains, giving them increased access to the Guangdong market.
Effective from March 2015, HKSS operating in Guangdong are essentially accorded the same rights as their mainland counterparts, except for a number of reserved restrictions laid down in the negative list. It should be noted that the Guangdong Agreement adopts a hybrid approach to providing liberalisation measures, with both negative-list and positive-list measures being covered. This article examines a number of the CCI segments that are covered under the Guangdong Agreement liberalisations. The breadth and depth of these liberalisations go further than previous CEPA Supplement measures, allowing HKSS to benefit from additional operational flexibility in the Guangdong market.
The following table illustrates the liberalised sectors established under CEPA since its inception (Phase 1) through to the Guangdong Agreement (Phase 12). The boxes in yellow and orange show the newly added sectors under the Guangdong Agreement with, respectively, national treatment and reserved restrictive measures on the negative list for HKSS. Similarly, the boxes in green and blue show the existing liberalised sectors with, respectively, national treatment and reserved restrictive measures for HKSS . Sectors which continue to be positively listed, such as cultural and telecommunication services, are in grey boxes. Aside from the cross-border services that remain on the positive list, sectors with liberalisation measures are categorised in accordance with the forms of commercial presence allowed (i.e. whether national treatment is granted, as the key below the table shows).
CEPA and the Cultural and Creative Industries
Statistically, CCI is a significant contributor to the Hong Kong economy, accounting for 5.1% of the city’s GDP in 2013 , up from less than 4% in 2006. As a sector, its contribution to the local economy was greater than either the tourism sector (5%) or the logistics and transportation sector (3.2%) . Overall, CCI hired about 207,490 people in 2013, or 5.6% of Hong Kong’s total employment for that year, a slight increase on the 2009 level . For the purpose of analysis, it should be noted that there might not be identical mapping between all of the CEPA sectors and CCI segments.
In some cases, the CCI-CEPA mapping is sufficiently direct, with the CEPA sector designated as advertising finding almost a perfect match with the CCI segment similarly designated. The CEPA sector of library, museum and other cultural services is also largely in line with the CCI segment. Notably, the CEPA sector of audio-visual services overlaps with the CCI segments covering film, video, music, television and radio. Nonetheless, the CEPA sectors of computer services and cultural services not only include the CCI segment of software, computer games and interactive media, but also the performing arts agencies and performance venues that correspond to another CCI segment .
The CCI segment of architecture, an integral part of the CEPA sector of construction and related engineering services, is subsumed under the pillar industry of professional services. (This is covered in another article CEPA 2015 – Free Trade with Guangdong in Professional Services). This article looks at the liberalisation measures of the CEPA sectors of cultural services, computer and related services, and trademark agency services under the Guangdong Agreement, as these services cover different CCI segments that constitute parts of Hong Kong’s knowledge-based value chains. Some other CEPA sectors – though without liberalisation measures under the Guangdong Agreement, or strictly speaking not even among the CCI domains – are treated as part of this article’s analytical framework and hence included, notably audio-visual services and printing services.
The CEPA sector of advertising services was first opened up to HKSS in 2004 with no Supplement measure being added since CEPA’s inception. Under CEPA, HKSS are allowed to form wholly owned operations on the mainland in order to provide advertising services. Their application and operational requirements, however, are subject to mainland regulations governing foreign-invested advertising agencies, with no other positively listed Supplement proviso suggesting otherwise. Nonetheless, Hong Kong advertising agencies have been keen to access the mainland market, with this being reflected in the high category rankings over the years. As of April 2015, a total of 138 HKSS certificates had been issued with regard to the advertising services sector. This made it the fifth largest group of HKSS certificate recipients, behind fourth-ranked “placement and supply services of personnel services”.
In the negative list of the Guangdong Agreement, however, HKSS are granted national treatment when operating advertising agencies in Guangdong. This means they are being given even greater operational flexibility compared to other non-CEPA foreign services suppliers, which are subject to regulations such as “The Provisions on the Administration of Foreign-funded Advertising Enterprise" and "Administrative Measures on Advertising Business Licenses", issued by the State Administration for Industry and Commerce (SAIC).
The first batch of cultural service liberalisations under the CEPA Supplement was implemented in 2005, and now there are two main branches of cultural services under CEPA. Performing arts and related services are in one branch, and internet business services in the other. HKSS enjoy far greater business flexibility in both branches compared to non-CEPA foreign services suppliers. In terms of HKSS access to the mainland market, “cultural services” are ranked 13th among the 53 sectoral categories of HKSS certificates issued. As of April 2015, 27 cultural services certificates had been issued to HKSS (roughly 1% of all 2,900 HKSS certificates), representing a marked increase of about 70% since late 2013.
With regard to the cultural services sector and its related sub-sectors, the Guangdong Agreement states that liberalisation commitments to HKSS operating in Guangdong will continue to adopt positive listings. Further, both the mainland and Hong Kong agree to maintain consultations as to progressively reducing discriminatory measures. In the event the new Guangdong Agreement liberalisations conflict with those under the CEPA Supplements, the former prevails.
Since 2005, HKSS have been allowed to establish wholly owned enterprises on the mainland to operate performance venues, performing arts agencies, performing arts groups, art galleries, art shops and artwork exhibition units. In addition, HKSS minority-owned joint ventures are allowed to operate performing art groups for the organisation of commercial performances, subject to prior approval from the Ministry of Culture (MOC). By comparison, other non-CEPA foreign services providers are allowed to form joint ventures in the performing arts and related services. Under the Guangdong Agreement, HKSS are allowed to set up wholly owned entertainment premises in additional pilot areas in Guangdong Province alongside the existing pilot areas of Qianhai and Hengqin. They are further allowed to engage in the sales/services of amusement game equipment.
HKSS are allowed to operate wholly owned internet online service business premises on the mainland, while contractual joint venture (JV) operations are permitted for internet culture business units. These business units essentially allow for the operation of websites or the provision of cultural products produced, disseminated and circulated through the internet. On the mainland, internet cultural products cover online music entertainment, online games, online shows and plays, online works of art, online cartoons, and other cultural products.
Given their CEPA advantages, the establishment of internet culture business units is an area that HKSS can explore more fully, as wholly owned operations have been allowed on the mainland since 2013. At present, internet culture business remains largely closed to foreign services operators, even though they are permitted to participate in the mainland’s booming online music market. A 2011 amendment to the previous rules explicitly prohibits foreign investors from setting up or operating internet-based cultural activity units .
For HKSS intending to set up internet culture business units on the mainland, the minimum capital requirement stands at Rmb1 million. The exception is online game operations, which has a minimum capital requirement of Rmb10 million. This is seen as being a hurdle for Hong Kong online game developing companies, most of which are SMEs.
|Current scope of access||Access for HKSS under CEPA|
Computers and Related Services
While CCI includes the domain of software, computer games and interactive media, it appears that the CCI domain does not correspond directly to the classifications under CEPA. As the biggest CCI domain, software, computer games and interactive media play a key role in Hong Kong’s knowledge-based economy and account for, respectively, 39% and 25% of the CCI value-added and employment. As mentioned above, China’s internet cultural business covers cultural products produced, disseminated and circulated through the internet. This is, namely, online music entertainment, online games, online shows and plays, online works of art, online cartoons, and other cultural products. This leaves the CEPA sector of computer and related services, as well as information technology services, focussing on software implementation and data processing services.
CEPA Supplements, which are positively listed, lower the entry barriers for establishing a commercial presence and provide greater flexibility for HKSS targeting the mainland market. The Guangdong Agreement, through its negative list, grants national treatment to HKSS operating in Guangdong Province in the following areas: data processing services (including input preparation, data processing and tabulation, time-sharing and related services), software implementation services (including both packaged and customised software), consultancy services related to the computer hardware installation, and database services excluding network operation services and value-added network services.
Of note is the fact that the CEPA Supplements, while opening up the database services market to HKSS as a WTO-plus arrangement, limit the equity stake of HKSS to only 50% in any joint venture. In comparison, the granting of national treatment under the Guangdong Agreement makes it more effective for HKSS to enter the database services market in Guangdong by providing internet data centre services, storing and forwarding services, and content services.
Along with the existing CEPA arrangement that allows HKSS to provide cross-boundary database services in Qianhai and Hengqin on a pilot basis, this should reinforce Hong Kong’s edge as the market leader in database services, particularly in light of the growing regional demand for economical, back-end support, as well as the rapid uptake of cloud computing. As of the end of April 2015, a total of 20 HKSS certificates had been issued in the sector of computer, information technology and related services (up from 17 in late 2013).
|Current scope of access||Access for Hong Kong under CEPA|
* Include services under this sector or sub-sector.
Hong Kong has a vibrant creative sector that generates significant levels of audio-visual content, which can be transformed into a variety of different products and services for motion pictures, video, television and music, and released via traditional and digital channels. As previously covered, digital entertainment and other forms of online music, online cartoons and online shows fall within the scope of internet culture products. As such they are governed by the CEPA sector of cultural services, instead of audio-visual services.
HKSS in the audio-visual services sector have substantially benefitted over the years from the various liberalisation measures of the CEPA Supplements. They are allowed to engage in cinema operations, the production and distribution of audio-visual products, motion pictures and television dramas in the mainland market. Audio-visual services are ranked seventh among the 53 sectoral categories of HKSS certificates issued. As of April 2015, 70 cultural services certificates had been issued to HKSS, accounting for 2.4% of all HKSS certificates, just trailing behind construction and engineering services.
Allowed under CEPA to build and renovate cinemas through their wholly owned operations, HKSS have played a pivotal role in introducing state-of-the-art, multiplex-format cinemas to the mainland, helping speed up the growth in the number of cinema screens over the past decade. The number of cinema screens on the mainland is estimated to have undergone a six-fold increase from about 3,500 to more than 23,000 in the eight years to 2014. It is expected the number of cinema screens on the mainland will keep growing rapidly over the coming years, fast approaching, if not overtaking that of the US, which is currently home to about 40,000 screens.
With regard to movie-productions, HKSS have made substantial inroads into the mainland market, partly because Hong Kong-mainland co-productions - which are treated as mainland domestic productions - often make their way into the 10 best grossing movies of the year. In 2014, the mainland’s box office gross was about US$4.8 billion, a year-on-year growth of 36%, with domestic movies having a 55% share. Two Hong Kong-mainland co-produced movies - The Monkey King and The Taking of Tiger Mountain - were ranked as the third and fourth highest grossing movies on the mainland in 2014. With the rapid growth currently being witnessed, the mainland’s box office is expected to surpass the US and become the world’s largest in 2018.
The Guangdong Agreement, however, does not contain any liberalisation measure across the entire sector of audio-visual services. CEPA introduced liberalisation measures in the sub-sector of cinema services, movie co-production and distribution services in the first three years of CEPA’s inception, and then again in 2010 and 2014. Furthermore, many important liberalisation measures were adopted in 2014 for the audio-visual services sector. The most visible is the breakthrough that allows Hong Kong-produced movies (not co-productions) to have privileged access to the mainland market. They can be screened on the mainland with the original dialect sound track, along with standard Chinese subtitles. These measures are enriching the practice of allowing Cantonese versions of Hong Kong-mainland co-productions to be distributed and screened in Guangdong Province.
In terms of the mode of commercial presence allowed under CEPA Supplements, HKSS are allowed to set up wholly owned or JV enterprises on the mainland to distribute, as well as produce videos and sound-recording products (including movie products), enabling them to vertically integrate their audio-visual production and distribution businesses. In addition, HKSS are allowed to establish wholly owned enterprises on a pilot basis to distribute mainland-produced movies after obtaining the approval of the relevant mainland authorities.
|Current scope of access||Access for HKSS under CEPA|
* Include services under this sector or sub-sector.
Strictly speaking, printing is not within the cultural and creative industry domain, but it forms a critical part of the value chain closely connected with IP products and services, particularly publishing. CEPA has been instrumental in lowering the thresholds of HKSS entering the mainland’s printing services market. This can be seen by the surge in the associated HKSS certificate approval numbers over the past few years. As of April 2015, a total of 115 HKSS certificates had been issued in the printing services sector, making it the sixth largest group of HKSS certificate recipients (trailing “advertising services”).
The Guangdong Agreement contains no liberalisation measure for the printing services sector. It should be noted, however, that in the seven years to 2014, relevant liberalisation measures were introduced under five CEPA Supplements, with the latest package of three measures under Supplement X implemented in 2014. In addition to being allowed to set up minority-owned JV enterprises on the mainland in the printing of publications and other printed matter, Supplement X further allows HKSS to set up contractual JV enterprises. These JVs can engage in the printing of publications and other printed matter, with the mainland investors holding dominant position in these enterprises. Operations set up by HKSS in Qianhai and Hengqin would have their equity holding limited to 70%.
Foreign companies are subject to a minimum registered capital requirement of Rmb10 million when it comes to setting up printing enterprises that provide printing services for packaging materials. By contrast, HKSS are accorded national treatment in this respect: the minimum capital requirement is thus reduced substantially from Rmb10 million to Rmb1.5 million.
|Current scope of access||Access for Hong Kong under CEPA|
* Include services under this sector or sub-sector.
Trademark Agency Services
The mainland market for trademark agency services is huge in light of the surge in trademark applications. China has been ranked first among all WIPO members since the early 2000s in terms of the combined applications of resident- and non-resident trademarks, something that more than quadrupled to total above 1.86 million between 2003 and 2013.
Under CEPA, HKSS are allowed to provide trademark agency services on the mainland after registering with the SAIC at the provincial level and after acquiring the qualification of a statutory operating body. As of April 2015, a total of 20 HKSS certificates had been issued in the sector of trademark agency services, bringing it to 20th place among the 53 HKSS categories.
The negative list of the Guangdong Agreement explicitly states that HKSS are given national treatment with regard to their application for trademark agency operations in Guangdong. Generally speaking, the permitted business scope of a trademark agency on the mainland (including Guangdong) consists of the following: (i) the handling of trademark applications, modification, renewal, assignment, opposition, revocation, examination and infringement, (ii) providing legal advice and acting as a legal consultant on trademark laws, and (iii) handling of other trademark related legal matters.
In the same vein, the Guangdong Agreement also grants national treatment to patent agencies for HKSS in Guangdong. The patent agencies market on the mainland is also growing fast in light of China’s lead in patent applications among WIPO members.
 Based on international guidelines together with local adaptations, Hong Kong’s Cultural and Creative Industries (CCI) are classified into 11 domains, (i) art, antiques and crafts; (ii) education and library, archive and museum services; (iii) performing arts; (iv) film, video and music; (v) television and radio; (vi) publishing; (vii) software, computer games and interactive media; (viii) design; (ix) architecture; (x) advertising; and (xi) amusement services.
 CCI are knowledge-based industries and their output is often translated into intellectual properties (IP), typically consisting of copyright, industrial design, trademarks and patents.
 The boxes in blue merely show that there are reserved restrictive measures under the negative list of the Guangdong Agreement for the concerned sector as a whole, while individual sub-sectors may attract national treatment in terms of establishing a commercial presence in Guangdong.
 The Hong Kong C&SD released in April 2015 The Four Key Industries and Other Selected Industries in the Hong Kong Economy, with the 2013 figures being the latest statistics.
 Based on the official statistics released in April 2015, Hong Kong’s logistics sector accounted for about 3.2% of Hong Kong’s GDP in 2013, down from 4.2% in 2001. In terms of employment, the sector hired about 187,800 people and accounted for 5% of Hong Kong’s total employment in 2013, down from 5.8% in 2001. Compared with other pillar industries, the logistics sector’s performance has been fairly lacklustre. In the five years to 2013, the logistics sector’s value-added growth contracted annually by an average of 1.4%.
 CCI mainly covers the private sector production activities, and services provided by government departments in Hong Kong are therefore excluded.
 Under the Guangdong Agreement and the related annex on liberalisation measures, the cultural sector includes service trade sectors (and sub-sectors) of research and experimental development services on social sciences and humanities (CPC852), printing and publishing services (CPC88442), read-only optical disc duplication services under other business services (CPC8790), motion picture and videotape production and distribution services (CPC9611), motion picture projection services (CPC9612), radio and television services (CPC9613), radio and television broadcast transmission services (CPC7524), sound recording services, other audio-visual services, retail services of books, newspapers, magazines, cultural relics (CPC631+632+6111+6113+6121), cultural relic auctioning services under other distribution services, entertainment services (CPC9619), news agency services (CPC962), library, archive, museum and other cultural services (CPC963) etc., (including cultural information services of news, publishing, audio-visual programmes, sound and images, games etc. provided through the internet, and cultural relic services.)
 The Ministry of Culture (MOC) promulgated a new version of the Tentative Provisions on the Administration of Internet-based Cultural Operations (“Tentative Provisions”) that went into effect in April 2011. Setting out the implementation rules for the administration of online cultural businesses on the mainland, the Tentative Provisions notes that internet culture businesses are now a permitted category for foreign investment. Nonetheless, with the exception of online music entertainment, foreign-invested applications to conduct other forms of internet cultural business activities are currently “temporarily” not accepted by the MOC or concerned provincial authorities.