A Primer for Media Companies on Upcoming Changes to Singapore Copyright Law

The Singapore copyright law is undergoing a significant revision. A new Copyright Bill, anticipated to be passed in November of this year, will include many new rights and exclusions not present in the existing Copyright Act. We highlighted some of the changes that will be of particular importance to media and entertainment companies as below:

1. The addition of a new armament for rights holders in the fight against content piracy is the most significant change

Persons who deal with illegal media streaming equipment, such as set-top boxes, or offer associated services will face new laws that entail both civil and criminal responsibility. While the existing Copyright Act includes provisions that might be used to prohibit such acts, there are significant challenges in implementing them since they were not designed with these activities in mind.

Making a copy of a work or film without the permission of the copyright owner is a copyright violation under the existing Copyright Act.

Furthermore, it is illegal to:

• Deal commercially with an item that is an infringing copy of a copyrighted work (an “infringing article”) (e.g., by producing, importing, distributing, or selling).
• Deal with an infringing item in such a way that it causes the copyright owner harm, whether for commercial or non-commercial reasons.
• Section 136: Make or possess an item that is specifically intended or modified to be utilised for producing illegal copies of a protected work: (4)
• When the amount of the infringement is substantial or the conduct is done for a commercial benefit, perform a copyright infringing act wilfully: section 136 (3A).

To fight internet piracy, this regulation was enacted in 2004.

Because they do not include any infringing material at the moment of sale, illegal set-top boxes are not captured by the offences that criminalise dealing with pirated goods. While sections 136(3A) and 136(4) have been effectively applied against a set-top box vendor and his director, the court’s judgement was based on the respondents’ guilty plea, thus the judge did not have the chance to hear and evaluate all of the arguments. If the situation is examined closely, there may be claims that the provisions do not apply.

It is both a copyright infringement and a crime under the Bill to:

• Make, trade in, or import for commercial reasons a device (including a component or a computer software) capable of enabling access to an unauthorised copy of a copyrighted work, or disseminate such a device in a way that would harm the copyright holder; or
• Offer or offer a service capable of enabling access to an unauthorised copy of a copyrighted work, either in conjunction with the sale of a device or in return for money. The term “service” refers to both a subscription service and the providing of information (e.g., website links or instructions for configuring the device to provide access to unauthorised content).

In all instances, the accused infringer must know or should reasonably know that (1) the equipment or service is capable of enabling access to unlawful material, and (2) it serves no other commercially significant purpose or use. This awareness requirement is intended to prevent people who work with multi-purpose devices like phones and laptops, which may be used to access illegal material but also have entirely legitimate purposes, from getting caught by the rules by accident. When a gadget is marketed as enabling users to access copyrighted material yet this access has not been authorised by the rights holders, the vendor is demonstrating at least constructive awareness.

These measures are in addition to the current procedure for rights holders to seek site-blocking orders from internet service providers in Singapore, preventing their customers from accessing flagrantly infringing online sites. Site-blocking orders may be issued against electronic programme guide and authentication servers that allow unlawful material to be accessed via applications installed on illegal set-top boxes. This will have to be the primary line of assault for set-top boxes that are already in customers’ homes.

2. Sound recording businesses will have more income sources as a result of the second major change

Owners of copyright in sound recordings will have their exclusive rights extended, and they will have a new right to fair compensation when their recordings are aired or publicly played in specific situations.

Currently, the copyright owner has the exclusive right, subject to certain exceptions, to: (1) make a copy of the recording; (2) enter into a commercial rental arrangement in respect of the recording; (3) publish the recording, if it has not been published; and (4) make the recording available to the public by means of or as part of a “digital audio transmission,” which is defined as (e.g., over the Internet).

The right under limb (5) shall be extended to encompass all methods of publishing the recording. The term “communicate” refers to the act of transmitting a work through electronic means, such as broadcasting it, putting it in a cable show, or making it accessible on demand to everyone. As a result, the copyright owner will have the ability to regulate how the recording is distributed through methods other than digital audio transmission, such as analogue transmission and broadcasting.

However, communicating a sound recording in the following ways does not constitute a copyright infringement in the recording, subject to the need to give equitable compensation to the copyright owner in certain cases: an analogue transmission; an analogue broadcast; a digital transmission (that is not a broadcast) that is not part of an interactive service (broadly speaking, a service that allows an individual to request specific content or content that is curated specifically for him); or a digital broadcast that is not part of an interactive service.

When the recording is made public, there is also a right to obtain fair compensation.

In practice, this implies that as long as fair remuneration is given, there may be no right to restrict the above-mentioned actions. The right to be paid for these extra actions, on the other hand, represents a possible new income stream for sound recording businesses. The parties must agree on the amount of fair compensation to be paid, or the Copyright Tribunal will determine in the absence of such agreement.

An owner of copyright in a sound recording, for example, has no authority to prevent the recording from being played in public. That is not to imply that any song or melody may be publicly played without authorization, provided that the owner of the copyright in the sound recording is compensated fairly. The underlying literary or musical work in a song or tune is protected separately, and interactions with these works will need the consent of the appropriate rights owners.

3. Employers will be the default owners of copyright in sound recordings and films produced by workers while on the job

Currently, if an employee makes a sound recording or a video, he is the copyright owner by default. If the employer wants to hold the copyright, it must get an assignment from the employee, either as part of the employee’s employment contract or via a separate assignment agreement.

Employers will be the default owners of copyright in sound recordings and films produced by their workers while on the job, according to the bill. The move brings sound recordings and films into line with authorial works. The new rules will only apply to works produced as a result of contracts signed after the Bill’s passage.

Companies may want to examine their current employment contracts and templates to determine if any modifications are needed in light of the impending change. If there is no mention of copyright ownership in the contracts or templates, the rights will automatically belong to the employer. If any contract or template says or implies that the employee owns the copyright, it should be changed straight away. Because the default rules may be changed by contract, this is the case. Existing workers who have been recruited to produce such works, or who are anticipated to do so, may be compelled to sign a new employment contract if necessary.

4. Schools will be allowed to utilise Internet-based materials for instructional reasons

A new exemption will be created that will allow not-for-profit educational institutions, as well as their employees and students, to do certain actions for “educational reasons” without having to compensate the copyright owner. This move is expected to have the greatest effect on the publishing sector. Other sectors of the media business should be informed of the change since the exemption will apply to all kinds of works, including all authorial works (literary, dramatic, musical, and artistic works), sound recordings, films, broadcasts, and cable programmes.

This exemption is claimed to be required due to the evolution of teaching and learning techniques and styles throughout time, as well as the growing emphasis on e-learning, student-directed learning, and peer-to-peer learning. As a result, instructors and students must now utilise resources other than conventional textbooks.

The following actions are permitted: (1) replicating; (2) communicating on a network maintained or controlled by the school and solely accessible by staff and students (e.g., an intranet); (3) modifying works or recordings of performances; and (4) recording a performance ‘live.’ Collaboration research, actions done for the aim of teaching or study, and organising or participating in an exhibition or competition are all examples of “educational purposes” (whether within our outside of the educational institution). As a result, it seems that the exception will apply to a wide range of situations.

The following criteria apply to the exception:

• the work, recording, or performance (collectively, “works”) must have been accessed via the Internet and must have been freely available to the public at the time of access;
• the user must cite the Internet source and the date on which it was accessed;
• if the work made available via the Internet source was an unauthorised copy, the user must not know; given that the information is accessible from an Internet source, both the title of the work and its author must be named; and
• provided that the information is available from an Internet source, both the title of the work and its author must be identified (unless the author is unknown or has agreed not to be acknowledged).

The only method to avoid items that have been published online falling under the exception is to guarantee that they are not freely available to the general public. The provision includes examples of when this would not be the case, such as when the work (a) is only accessible for a limited time that cannot be renewed or extended (e.g., under a free one-time trial subscription); (b) is only accessible by circumventing any technology that controls access to the work (e.g., password protection mechanisms); and (c) is only accessible under a licence that is not transferable (e.g., where a free subscription is bundled with another product or service).

Other Changes

Aside from the aforementioned modifications, the Bill will also bring about the following:

• Creating a new right for inventors and performers to be recognised
• Making certain works’ creators (photographs, portraits, engravings, sound recordings and films) the copyright holder by default
• The use of works for computational data analysis is now exempt from copyright infringement.
• Contractually stipulating that specific exclusions cannot be omitted or changed
• The “fair use” exemption is being reclassified
• Limiting the term of copyright protection for unpublished works
• Introducing new exclusions or amending existing exceptions relating to galleries, libraries, archives, and museums, print-disabled users, and official government registries