26 February 2019
On 17 January 2019, the Ministry of Law (“MinLaw”) and the Intellectual Property Office of Singapore (“IPOS”) issued the Singapore Copyright Review Report (“Report”) which outlines proposed changes to the Copyright Act with the aim of updating Singapore’s copyright regime to better support creators and the use and enjoyment of creative works in the digital age. When ready, the draft bill will be made available to the public for comments on the implementation details.
The proposals in the Report follow an extensive three-year review which included two rounds of public consultations, three public town halls and 10 engagement sessions with various stakeholders.
A summary of the key proposed changes to the Copyright Act as outlined in the Report is set out below:
- New civil and criminal liability provisions relating to streaming of audio-visual content from unauthorised sources in set-top boxes: The Copyright Act will be amended to impose civil and criminal liability on those who wilfully make, import for sale, commercially distribute or sell a product (which can be a hardware device or a software application) that can be used to access audio-visual content from an unauthorised source and, additionally, must 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.This proposal is intended is to disallow retailers, manufacturers, importers and distributors from commercially benefiting if they knowingly deal with set-top boxes that are enabled to allow access to content from unauthorised sources, or if they deal with set-top boxes and provide “add-on” services, such as website links or subscription services, that enable access to content from unauthorised sources. New provisions will also be introduced to impose civil and criminal liability on service providers who do not sell devices but instead, for a fee, either sell software, or otherwise enable devices to access content from unauthorised sources (e.g. on devices that a consumer already owns, installing and setting up applications that enable access to content from such sources).
- Attributing creators whenever their works are used: There will be a new right of attribution for authors of literary, dramatic, musical and artistic works in relation to those works and adaptations of them, and for performers for performances. The right, which will be personal to the author or performer (and not transferable), will not apply to specified works and performances (e.g. a computer programme or a work created in the course of employment). The right will last for the duration of copyright or protection period of a performance (as the case may be). It is also proposed that there will be defences and exceptions to the right of attribution.
- Granting creators default ownership of certain commissioned works: It is proposed that the default ownership of commissioned photographs, portraits, engravings, sound recordings and cinematograph films would be with the creator instead of the commissioning party.
For the general employment situation, employers will continue to have default copyright ownership of literary, dramatic, musical and artistic works. However, the Copyright Act will be amended to also give employers default ownership of the rights in other subject matter (such as sound recordings and cinematograph films) created by employees. The current default ownership rules would be retained for journalist-employees.
- Facilitating uses of works for text and data mining: There will be a new exception to allow copying of copyrighted materials for the purpose of data analysis. There will be additional safeguards and conditions for the exception to apply, e.g. the user must have lawful access to the works that are copied and the user cannot distribute the works to those without lawful access to the works. Both commercial and non-commercial activities can qualify for the exception. Rights-holders will not be prevented from taking reasonable measures to maintain the security and stability of their computer system or network.
- Strengthening the general “fair use” exception: The Copyright Act currently provides for an open-ended “fair use” exception, which permits uses of copyrighted works without the need to ask permission from the copyright owner, as long as the courts would deem the specific use as being “fair”. To guide the courts, the Copyright Act has a list of five non-exhaustive factors which the courts should take into account when determining whether a particular use is “fair” or not. The five factors are (i) the purpose and character of the use, including whether the use is commercial in nature or for non-profit educational purposes; (ii) the nature of the creative work; (iii) the amount of the creative work that has been copied, or whether the part that is copied is substantial to the whole of the creative work; (iv) the effect of the use on the potential market for, or value of, the creative work; and (v) the possibility of obtaining the creative work within a reasonable time at an ordinary commercial price.
The Copyright Act will be amended to remove the fifth factor from the list of non-exhaustive factors that the courts must consider when determining whether or not a use is “fair” under the “fair use” defence. This is because the matters addressed by the fifth factor may not be relevant in all cases. Further, the Copyright Act will also be amended to describe the open-ended exception as “fair use”. The amended legislation will clarify how the “fair use” exception operates vis-à-vis the other exceptions, including the specific fair dealing exceptions.
- Facilitating educational uses by non-profit schools: There will be a new purpose-based exception for educational uses which will apply to any online work that is accessible without the need for payment at the time of access. The use of the online work must be in the course of any activity that has an educational purpose (such as giving or receiving instruction) and limited to reproducing, adapting or communicating it. The persons who can avail themselves of the exception will be limited to students, teachers and government officers who perform curriculum or content development functions.
- Protecting certain exceptions from being restricted by contracts: A contractual term which attempts to override an exception will not be allowed if it is unreasonable. The current list of exceptions that cannot be restricted by contracts will be expanded to include exceptions for reproduction for purposes of judicial proceedings or professional advice, exceptions relating to galleries, libraries, archives and museums, and the new exception for data analysis.
- Enhancing collective rights management: There will be a new class licensing scheme for collective rights management organisations which will be administered by IPOS. IPOS will not intervene to set rates or approve licence fees. Any entity that carries out collective licensing activities in Singapore will be automatically subject to and have to comply with all licence conditions.
- Increasing the availability of materials on official government registers: There will be a new exception to facilitate access to materials that are on statutory registers or otherwise accessible to or available for inspection by the public pursuant to any written law.
- Setting an expiry date for the protection of unpublished works: The duration of copyright protection for unpublished worked will be limited. Currently, so long as a work remains unpublished, it enjoys perpetual copyright protection. In many other countries with a strong copyright protection system, such as the United Kingdom, Canada, New Zealand, the US and Australia, legislative changes have been effected to limit the duration of copyright in unpublished works.
The other changes proposed in the Report relate to new exceptions for galleries, libraries, archives and museums, adjusting existing provisions for print-disabled users and improving access to knowledge in non-patent literature. To address the underlying information asymmetry which has contributed to the power imbalance in dealings between creators and publishers/producers, MinLaw and IPOS will collaborate with industry associations to develop sector-specific resources. The relationship is usually skewed in favour of the publishers/producers who possess strong bargaining power and a better understanding of contracts and legal rights.
The Report also provides that previous proposals to establish a voluntary copyright registry and an orphan works registry will not be implemented.
The following reference materials are available on the Ministry of Law website www.mlaw.gov.sg:
- Press release
- Annex A: Copyright Review Report
- Annex B: Public consultation paper on proposed changes to copyright regime in Singapore (August 2016)
- Annex C: Public consultation paper on CMO Ecosystem in Singapore (May 2017)