The Ministry of Law and the Intellectual Property Office of Singapore (IPOS) published the Singapore Copyright Review Report recommending wide-ranging amendments to the Copyright Act in January 2019.
These proposals come on the back of a three-year review and public consultation period which began in August 2016 and represents a much-needed update to the act. These proposals fall into three broad categories: (i) the enhancement of creators’ rights; (ii) exceptions for use of copyrighted materials; and (iii) a class licensing scheme for collective management organizations.
The proposed amendments are currently at a preliminary stage with more public consultations on the draft legislative bill to follow. This article sets out the key features of the amendments that will eventually be drafted.
Enhancement of Creators’ Rights
Right of Attribution. Creators are said to possess moral rights over their creations, which generally includes the right to be identified with one’s work and the right to preserve the integrity of one’s work. Such rights are enshrined in Article 6bis of the Berne Convention for the Protection of Literary and Artistic Works.
There is no such protection under the existing Act in Singapore. Although authors and performers are entitled to prevent the false attribution of authorship or identity of performer, they do not have the independent right to be acknowledged as such author or performer.
The proposed amendments will seek to address that. Authors of literary, dramatic, musical and artistic works and performers of performances will have the right to be identified whenever their work or performance is used, for the duration of the copyright or protection period. This right is non-transferable and personal to the author / performer and would apply regardless of who owns the copyright.
The proposal is significant as it brings Singapore in line with other jurisdictions such as the United Kingdom, France, Germany, the United States, Canada and Hong Kong in recognizing moral rights.
Due to the personal and non-transferable nature of attribution rights, there is danger that commercial activities may be hindered by the need to identify each and every author of any particular work, especially where it is produced in a collaborative manner with several authors. To address this, the Ministry of Law and IPOS have indicated that specific defences and written waivers will be made available. However, it remains to be seen whether those measures will be sufficient to ameliorate any burden on business activities.
Default ownership of copyright for commissioned works and works created by employees / journalists. Under the current Act, the copyright ownership generally vests in the creator of the work. There exceptions to this rule are:
(1) Where the relevant work is a photograph, a portrait or an engraving commissioned by another party, default copyright ownership lies with the commissioning party;
(2) Where the relevant work is a literary, dramatic or artistic work created by an employee in the course of employment, default copyright ownership lies with the employer; and
(3) Where the relevant work is a literary, dramatic or artistic work created by a journalist in the course of employment with the proprietor of a newspaper, magazine or similar periodical, the proprietor shall be entitled to the copyright only insofar as it relates to the publication or reproduction of the work for in the newspaper, magazine or periodical.
Under the proposed amendments, creators of commissioned photographs, portraits and engravings will have default copyright ownership over those works. The Ministry of Law and IPOS further clarified that, considering technological developments in content creation, creators should also have default copyright ownership over commissioned sound recordings and cinematograph films.
The current default ownership rules will remain for works created by employees and journalist-employees. Employers will enjoy default ownership of copyright for works created by employees such as sound recordings and cinematograph films in addition to literary, dramatic or artistic works.
It is important to note that the default copyright ownership rules are subject to the terms of agreement or contract between the parties. As such, the amendments may be of limited significance for the majority of cases involving professional content creation agencies or employees.
That said, the proposed amendments are highly pertinent for freelancers and other ad-hoc workers from smaller businesses who may not have standard contracts in place. This change in default copyright ownership rules can assist such creators in building their portfolios.
New enforcement measures against audio-visual content from unauthorised sources on set-top boxes. In recent years, the proliferation of TV set-top boxes with the ability to stream content from unauthorised sources has vexed rights-holders. This has caused rights-holders to turn to other means of enforcing their copyright, such as seeking orders against internet service providers to compel them to block access to applications on set-top boxes which allow the streaming or downloading of unauthorised content.
The Singapore Copyright Review Report proposes that new provisions with the following key features:
(1) The products covered by the proposed legislation (the “Infringing Products”) are those which can be used to “access audio-visual content from an unauthorised source”;
(2) Infringing products must also be:
(i) “designed or made primarily for providing access to such content;
(ii) advertised as providing access to such content; or
(iii) sold as providing access to such content, where the retailer sells a generic device with the understanding that ‘add-on’ services such as the provision of website links, instructions or installation of subscription services will subsequently be provided,”
(3) Civil and criminal liability will be imposed on persons who “wilfully make, import for sale, commercially distribute or sell” infringing products;
(4) Infringing products can take the form of a hardware device or software application; and
(5) Legislative provisions will also be introduced to impose civil and criminal liability on persons “who, for a fee, provide a service to enable devices to access content from unauthorised sources such as the provision of website links, instructions or installation of subscription services”.
Exceptions for the Use of Copyrighted Materials
Amending the Existing General “Fair Use” Exception. Section 35 of the Act provides 5 general exceptions to copyright infringement in respect of fair dealings of literary, dramatic, musical or artistic work or its adaptations.
The Singapore Copyright Review Report proposes removing the fifth factor since it may be irrelevant in some circumstances and that “[i]t would be undesirable to perpetuate the misconception that as a result of the fifth factor, users of copyrighted works must always try to seek a licence when relying on fair use”. In any event, the fifth factor could be subsumed under the fourth factor (i.e. the market effect of the dealing).
The Singapore Copyright Review Report also proposes changing the terminology used for the general exception in section 35 of the Act to “fair use”, to reflect its similarities with the fair use exception in the United States. Amendments will also be made to clarify the operation of the general “fair use” exception vis-à-vis the specific fair dealing and other exceptions found in the Act.
New Exception for Use of Works for Text and Data Mining. Text and data mining refers to the use of automated process to analyse vast quantities of text and data resources to generate information and insights. While text and data mining is an important tool in data analytics, it may result in unintended copyright infringement as it typically involves the copying of large amounts of material which could be copyrighted.
To address this, the Ministry of Law and IPOS has proposed that an exception be introduced for data analysis, with the following elements:
(i) The exception will only apply to the act of copying for the purpose of data analysis;
(ii) The person accessing the copyrighted material (“user”) must have lawful access to the said material; and
(iii) The user cannot distribute the copyrighted material to those without lawful access.
The proposed exception is largely in line with recent developments in Europe (in particular, Germany, France and the United Kingdom) and is not surprising in light of Singapore’s recent efforts to position itself as the region’s big data hub, with its data analytics industry contributing some S$1 billion to its economy annually.
Unlike the position in the United Kingdom, the proposed exception to text and data mining does not distinguish between commercial and non-commercial activities. Data analytics firms will be able to exploit the exception in the course of business and it remains to be seen whether further regulation will be required in the future.
New Exception for use of free online works for educational uses. Educational materials, particularly those used for student-directed and peer-to-peer learning, are increasingly found online. In order to facilitate the use of online materials for educational purposes, the Ministry of Law and IPOS have proposed a purpose-based exception for educational use of such online material, with the following main conditions:
(1) The online works can only be used by way of reproduction, adaptation and communication for an educational purpose;
(2) Only online works that are accessible without the need for payment at the time of access may be used;
(3) The use must be in connection with a not-for-profit educational institution;
(4) Only students, teachers and government officers performing curriculum or content development functions may avail themselves of the exception.
Class Licensing for Collective Management Organisations
Known as collecting societies or copyright collectives in other jurisdictions, Collective Management Organisations (“CMOs”) in Singapore are appointed by copyright holders to manage their rights, including license administration, royalty collection and rights enforcement and are particularly important in the music industry as an intermediary between a multitude of rights-holders and users.
Due to issues relating to the governance and transparency of the existing CMOs, the SCRR proposes that a “light touch regulatory framework” in the form of a class licensing scheme be adopted and administered by the IPOS.
The features of the new class licensing framework are as follows:
(1) Any entity carrying out collective licensing activities in Singapore will have to comply with all licence conditions;
(2) A mandatory Code of Conduct will be implemented to set standards for transparency, governance, accountability and efficiency;
(3) IPOS will have the power to audit CMOs for compliance with the licence conditions;
(4) Directions may be issued to CMOs by IPOS to take actions to comply with licence conditions;
(5) IPOS may impose financial penalties for non-compliance, and may remove and replace management personal and board members in cases of repeated breaches of the licence conditions despite IPOS’ directions;
(6) IPOS will be empowered to suspend, revoke and reinstate licences.
The proposals made by the Ministry of Law and IPOS take into account the concerns of multiple stakeholders from various sectors in Singapore and ought to be welcomed. It is noted that most of these proposals have been tried in other jurisdictions where many lessons may be had, especially in relation to the right of attribution and the new exception for text and data mining.
This article was first published in the September 2019 issue of Asia IP Magazine.