Oct 10 2016 | by OrionW
A recent joint consultation paper published by the Ministry of Law (MinLaw) and the Intellectual Property Office of Singapore (IPOS) sets out a number of proposed changes to Singapore’s copyright laws. The proposals are designed to establish a regime where rights are reasonable, clear and efficiently transacted, whilst balancing the interests of creators, rights owners, users, businesses and future creators with those of other creators and wider society.
The last major changes to the Copyright Act were made in 2004 and although the current copyright regime is generally viewed as effective in incentivising traditional creators and producers of copyright and providing reasonable access to physical copyright goods, various amendments are seen as necessary to incentivise newer creators and producers, as well as to address current and future ways of using creative works in view of ever-changing technology.
The proposals touch on a number of different areas and are summarised below.
In Singapore, copyright protection over works arises upon creation into physical form (whether analogue or digital) of the relevant work and there is no separate need for registration.
Various jurisdictions around the world have set up voluntary copyright registries which aim principally to improve clarity in establishing copyright ownership, to provide increased certainty in resolving issues of copyright ownership and to improve the ease of tracing copyright ownership. The key point to note is that registration is not a prerequisite for the work to have copyright protection.
MinLaw and IPOS are examining the feasibility of establishing a voluntary copyright registry system in Singapore and have outlined two possibilities:
Each system would attract a fee but the “deposit” registry would likely be the costlier of the two.
Possible advantages of the registry system include reduced transaction costs for copyright users (who can just search the public register to locate work) and potentially increased licence revenue for copyright owners. The register could also hold details of any assignments, licences or security interests associated with the registered copyright work.
Although a voluntary registration system might provide copyright owners more clarity in establishing ownership, registration would not be a guarantee of ownership and in any dispute the burden would be on the party not holding the copyright registration certificate to show that the registered copyright owner was not actually the owner.
A new exception in the Copyright Act is proposed which would allow the use of copyrighted works for the purpose of data analysis. To benefit from this proposed exception, the user of the work would need to have legitimate access to the copyrighted work in the first place (for instance through a subscription to an academic journal).
The exception would not differentiate between commercial or non-commercial analysis activities, which means the final analysis could be commercialised. However, the exception would not operate where commercial benefit is derived from the actual copies of the copyrighted works instead of the analysis conducted on the text or data.
Non-patent literature (NPL) refers to documents or literature that are not part of a patent or patent application. Typical examples of NPL are journal articles, technical papers, conference proceedings papers and academic theses. NPL may also include video clips and photographs.
MinLaw and IPOS propose to create a new exception to the copyright infringement laws to permit the making and giving of copies of NPL by and between IPOS, its patent examiners and other third-party experts engaged by IPOS for patent office functions and the giving of copies of NPL by IPOS to applicants and other IP offices upon request, for search and examination and other patent office functions.
Technological protection measures (TPM) are digital protection mechanisms designed to restrict access to or use of copyrighted works, such as region coding on DVDs and Blu-ray discs.
The Copyright Act currently includes a general prohibition on circumventing these TPM or selling products which help others to do so, subject to certain exceptions. The general rule for permitting circumventions of TPM is that the TPM must be considered to adversely impair legitimate non-infringing uses (such as preventing interoperability, repairs, innovation and shutting out competition) as these uses are clearly beneficial to the public and are not piracy-related.
Under the proposals, permitted circumventions of TPM would be extended to cover preservation activities by libraries and archives, preservation of abandoned software, educational uses of audio-visual works and circumvention in limited circumstances to investigate and fix security flaws.
Orphan works are creative works protected by copyright for which the copyright owner is unknown. The Copyright Act currently does not include an exception for the use of such works, notwithstanding that a party may have conducted thorough but inconclusive searches for their creator.
As a result three potential options have been put forward to facilitate the use of orphan works. Broadly these would operate as follows:
Each method would be predicated upon the potential user having first conducted a minimum specified level of due diligence in seeking to track down the actual copyright owner.
It is proposed that the options mentioned above could also be extended to a situation where a copyright owner is known but fails to respond to a potential user for a prolonged period of time.
Under a current exception to the general rule that the first owner of copyright in a work is the creator of that work, a person who commissions certain specified types of works (photographs, painted or drawn portraits, engravings, sound recordings or cinematograph films) automatically has first ownership of the copyright.
It is proposed that this exception will be removed in the case of commissions of photos, portraits and engravings, so that creators of such works have first ownership of the copyright over their work. This change would be in line with the law as it stands in the UK, US, Canada and Japan.
MinLaw and IPOS are seeking submissions as to whether the exception for sound recordings and cinematograph films should similarly be removed.
So as to streamline the practical functioning and use of official registers, it is proposed that a new exception to copyright infringement laws be created that clarifies that when material is collected by public agencies for the purpose of making it available for public inspection, the copyright in such material is neither infringed by the public agencies in making it available, nor by the members of the public in making copies of the material with the authority of the public agency or government.
For certain types of creative work the expiry of the duration of copyright protection is calculated from the date of publication of that work. Consequently, if the work remains unpublished, it technically enjoys perpetual protection.
In order to remove this inconsistency and to simplify matters, it is proposed that the duration of copyright protection for literary, musical, dramatic works, engravings and photographs be 70 years after the death of the creator, regardless of when and if the work is published.
Currently a creator or a performer does not have a right to be attributed or credited as the creator of a work or the performer of a recorded performance. He or she only has a right to prevent false attribution by being able to prevent others from attributing authorship of his/her work to someone else.
In order to help creators build their reputations and support the creation of new works, a new personal right of attribution for creators and performers is proposed.
MinLaw and IPOS recognise that in certain instances creators can be much less aware of copyright laws and the rights they have over their creative works than the companies and businesses those creators deal with. As a result, they propose setting up a website to provide information which supports creators in managing their works.
The Copyright Act sets out various exceptions for uses of works that would in the ordinary course infringe copyright protection. In certain instances, the use of contractual waivers negates the policy intention that supports these exceptions. It is proposed that the Copyright Act be amended to clarify that additional new exceptions for text and data mining, museums and galleries and non-patent literature cannot be waived by contract.
Singapore copyright law 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”.
The Copyright Act includes five factors the courts may take into account when determining whether a particular use is “fair” or not, one of which is “the possibility of obtaining the creative work within a reasonable time at an ordinary commercial price”. This factor is viewed as being less relevant in light of current technology and it is proposed that it be removed from the defence of “fair use”.
Changes to the way in which schools, students and teachers make use of copyrighted material, such as through the increased use of learning portals, have prompted the proposals to create a new copyright purpose-based exception for non-profit educational institutions to allow the use of copyrighted material without the need to seek permission if the purpose is for giving or receiving instruction, regardless of the media or platform of instruction.
The consultation paper clarifies however that the exception is not intended to allow for the copying of whole books.
It is also proposed that non-profit educational institutions should be permitted to copy up to 10% of a copyrighted work (up from the current 5%) without having to pay a licence fee or record details of the copying.
There are further proposals to create a new exception for libraries and archives to be able to make a copy of the materials in their collection for the purpose of exhibition to the general public.
It is also proposed that copies could be made in relation to publicity for any exhibitions. However, if the material is drawn from work that is commercially available (e.g., a book that is currently in print), then only a reasonable portion, such as 10%, may be reproduced for this purpose.
Museums and galleries do not currently benefit from any specific exceptions under the Copyright Act. In order to assist them in disseminating and providing access to knowledge and culture, it is proposed that exceptions be created to permit not-for-profit museums and galleries to make copies of materials in their collections to preserve the original against loss, for record-keeping, for exhibitions (including publicity materials and catalogues) and on request by people requiring access for research and study purposes.
It is proposed that the right of copyright owners to seek equitable remuneration for conversion of their works into formats accessible to the blind/visually impaired be removed under the revised regime.
MinLaw and IPOS have requested that any views or comments on the issues highlighted in their consultation paper as well as on any issues that may not have been covered be submitted by 24 October 2016. Further details can be found in Part IV of the consultation paper.