Knowledge Highlights 16 July 2021
On 6 July 2021, the Copyright Bill (“Bill”) was tabled in Parliament for first reading. The Bill seeks to repeal and replace the current Copyright Act. It will strengthen the copyright regime in Singapore, by updating the Copyright Act to stay abreast of changes in how content is created, distributed, and used. The Bill will restructure and reword the legislation in plain English, to enhance its clarity and accessibility. There will be a more intuitive, thematic structure, with illustrations to show how provisions should be applied in particular situations.
By way of background, the Ministry of Law (“MinLaw”) and the Intellectual Property Office of Singapore (“IPOS”) conducted a public consultation on the draft Copyright Bill from 5 February 2021 to 8 April 2021. Most respondents agreed that the draft Bill was well-written and easier to understand than the existing Copyright Act. MinLaw and IPOS considered all suggestions received and, where appropriate, incorporated the feedback into the Bill introduced in Parliament. MinLaw has posted, on its website www.mlaw.gov.sg a summary of the key changes made in response to the feedback received and also an accompanying press release.
If passed, most of the provisions in the Bill are expected to be operational in November 2021.
- Granting creators and performers the right to be identified: Under the Bill, anyone who uses a work or performance in a way that causes it to be seen in public must identify the creator of the work or performer of the performance in a clear and reasonably prominent manner. Currently under the Copyright Act, creators and performers only have a right to prevent the false attribution of another person as the author or performer.
A “work” under the Bill is an authorial work, a published edition of an authorial work, a sound recording, a film, a broadcast or a cable programme. An “authorial work” is a literary, dramatic, musical or an artistic work.
- Granting creators default ownership of copyright in certain commissioned works: The Bill provides that the ownership of copyright in commissioned photographs, portraits, engravings, sound recordings and films would be with the creator instead of the commissioning party. Creators and their commissioners may nevertheless contract in writing to provide for the commissioner to own the copyright instead. For sound recordings and films created by employees as part of their jobs, employers will be the default first owner of copyright, in addition to authorial work under the Bill. The current default ownership rules for journalist-employees will be retained.
- Streaming of audio-visual content from unauthorised sources on set-top boxes: The Bill provides that copyright owners may sue anyone who knowingly engages in commercial dealings (e.g. sell, offer for sale, distribute for trade, etc.) with devices or services (such as set-top boxes or software applications), which have the commercially significant purpose of facilitating access to copyright infringing works.
- New sound recording rights: Under the Bill, sound recording companies will have a new right to collect licence fees for the broadcast or public performance of commercially published sound recordings. Collective management organisations (“CMOs”) may administer and collect this licence fee.
- New permitted use of works for computational data analysis: The Bill permits copying and the communication of copies for the purpose computational data analysis, such as sentiment analysis, text and data mining, or training machine learning, without having to seek the permission of each copyright owner, subject to certain conditions and safeguards to take into account rights-owners’ commercial interests. One condition is that the user must have lawful access to the work or recording from which the copy was made, and the copy must not be used or supplied for the purposes unrelated to computational data analysis
- Facilitating educational uses at non-profit schools: The Bill permits non-profit educational institutions to use internet material for educational purposes. The material must be accessible to the public free of charge. There must also be sufficient acknowledgement of the internet source and the work or performance used.
- Setting an expiry date for protection of unpublished works: Currently, an unpublished work enjoys perpetual copyright protection under the Copyright Act. The Bill provides that copyright in authorial works, sound recordings and films will be of finite duration, whether published or not.
- Strengthening the general “fair use” exception: The Bill restructures the current fair dealing exception into an open-ended general “fair use” exception by, among other changes, removing the requirement to demonstrate, in all cases, the possibility of obtaining a work within a reasonable time at an ordinary commercial price, and incorporating the other existing specific fair dealing permitted uses.
- Increasing the availability of materials on official Government registers: The Bill introduces an exception to permit copying and distribution of materials in public registers and public material maintained by the Government or its statutory boards for inspection and information.
- Protecting certain exceptions from being restricted by contracts: The Bill provides that certain permitted uses (e.g. permitted use for computational data analysis and permitted uses for the work of galleries, libraries, archives and museums) may not be excluded or restricted by contract at all.
- New class licensing scheme for CMOs: CMOs will be regulated by IPOS and will have to comply with minimum standards on transparency, governance, accountability and efficiency. Penalties will be imposed on CMOs and/or their officers who breach such standards.
The other key changes under the Bill which were highlighted by MinLaw relate to facilitating the work of galleries, libraries, archives and museums; and adjusting existing provisions for print-disabled users.
When the changes in the Bill become law, those who wish to deal in works and performances will have to ensure that they identify the creator of the work or performer of the performance in a clear and reasonably prominent manner and this can prove challenging in some circumstances.
In addition, commissioners of works should ensure that appropriate assignments are entered into with the creators as creators will be considered the default owner of such commissioned works.
Parties who have entered into copyright licensing arrangements in the past or intend to do so in future should review their existing and proposed terms to assess whether any permitted uses are being excluded.
Users of sound recordings should take note that the owners of the sound recordings will have the right to collect licence fees and if collections are done by the owners themselves rather than through a CMO, there are no minimum standards of transparency, governance, accountability and efficiency imposed on the owner as opposed to a CMO regulated by IPOS.
Copyright owners should also take note that the reworking of fair use into an open-ended exception will require determination by the courts as to whether a potential infringer can avail itself of the new exception in any given case on a case by case basis. Until then, copyright owners may expect infringers to cite the new open-ended fair use exception as a defence to allegations of infringement.