Singapore’s biggest copyright reform in 30 years
By Gavin Foo, Senior Legal Counsel, and Edmund Chew, Legal Counsel, Intellectual Property Office of Singapore
Copyright in the 21st century is much like the novelist Julian Barnes described art in The Noise of Time (2016):
“Art belongs to everybody and nobody. Art belongs to all time and no time. Art belongs to those who create it and those who savour it. Art no more belongs to the People and the Party, than it once belonged to the aristocracy and the patron. Art is the whisper of history, heard above the noise of time. Art does not exist for art’s sake: it exists for people’s sake. But which people, and who defines them?”
For whom does copyright exist? This question underlies virtually all law reform efforts in the field. In today’s complex normative landscape, where the only constant is technological and market change, policymakers are challenged to find solutions that fairly accommodate the concerns of an increasingly varied group of stakeholders who have yet more varied interests and perspectives. Prior to the enactment of the Singapore Copyright Act in 1987, the Parliamentary Select Committee considered 34 written representations on the draft Bill. Now, as Singapore undergoes the most comprehensive review of its copyright regime in 30 years, the total number of submissions has increased more than tenfold. Before arriving at the Singapore Government’s latest recommendations on 16 issues affecting copyright in the digital age, the Ministry of Law and the Intellectual Property Office of Singapore (IPOS) considered 94 formal written submissions and 283 online feedback forms. This huge increase in feedback reflects the growing complexity of the copyright landscape in the digital age.
The recently published Singapore Copyright Review Report outlines these recommendations, including proposed changes to the Copyright Act. The changes are wide-ranging. They cover new rights, new exceptions, new enforcement mechanisms, and a proposed new government-administered licensing framework for collective management. Myriad stakeholders will benefit as a result – individual authors, businesses, employers, users, intermediaries, students, researchers, and more; the reforms will benefit each of them to varying degrees. For one group of stakeholders in particular – members of the public – the changes will improve their everyday dealings with copyright. These stakeholders create, access, consume, and distribute content relentlessly, at work and at play, privately and publicly, and form the bedrock of any copyright system.
A more accessible copyright law for everyone
For a start, the reforms will involve restructuring all existing provisions of the Copyright Act and recasting them in plain English. This is a substantial undertaking. The Copyright Act is Singapore’s most complex piece of intellectual property legislation; it consists of around 350 printed pages and comprises more than 272 sections across 17 Parts and 36 Divisions. The Act generally embodies legislative drafting practices and statutory language that are more than 30 years old. Most of its provisions have not been amended since they were first enacted.
As the term suggests, “restructuring” entails improving the organization and flow of the Act. For example, it will involve streamlining certain provisions that have been fragmented and duplicated as a result of early efforts to hardwire into the structure of the Act the traditional distinction between original works produced by an author and other subject matter (such as sound-recordings, cinematograph films and broadcasts). As a consequence, provisions on copyright subsistence, duration and ownership are contained in one part of the Act for original works produced by an author, and repeated in another part for other subject matter. Likewise, certain exceptions, such as fair dealing, are contained in separate provisions in different parts of the legislation even though the provisions essentially relate to the same exception.
Navigating the 1987 Copyright Act and understanding its provisions can be challenging even for those who are legally trained, and certainly more so for members of the public. By restructuring the Act and rewriting it in plain English, all stakeholders will gain access to provisions that are readily understandable and arranged in a logical, intuitive and user-friendly manner. This will ensure that members of the public are better placed to observe and apply Singapore’s copyright laws. At the very least, parties appearing in court for an Internet site-blocking order will no longer have to cite unwieldly references to key provisions – such as section 193DDA(2)(a) of the Act – an inconvenient consequence of the many piecemeal legislative amendments over the years, which will also be cleaned up in the process.
Beyond these stylistic amendments, Singapore’s copyright review also proposes substantive amendments where the beneficiaries include members of the public. Two such amendments are described below.
Mining the new data analysis exception to benefit society as a whole
The world is on the cusp of sweeping technological and market changes that are said to herald the fourth industrial revolution. At its core is data – a commodity that many have described as the new oil of the digital economy. Data fuels seemingly infinite applications across every industry and sector; insights gained from data analyses are widely recognized to generate substantial savings in time and cost and empower businesses to make proactive, knowledge-driven decisions. Known applications of data analysis – such as predicting disease outbreaks by mining news archives – are only beginning to scratch the surface of the social good that may be achieved from such activities.
Against this backdrop, it is no surprise that an exception to copyright law for data analysis, often referred to as a “text and data mining” exception, has garnered increasing interest and support from many jurisdictions around the world, including Australia, the European Union, Japan, the United Kingdom and now, Singapore. Essentially, such an exception serves to exempt from copyright law acts of reproduction that are performed in the course of text and data mining, which typically involves using automated techniques to copy large quantities of material, extract data from the material, and analyze the data to glean new insights and information. Without an exception, such acts may risk infringing copyright whenever the material is copied, which in turn, produces a chilling effect on text and data mining activities.
Singapore’s version of the exception is calibrated to recognize the realities of such activities and to create a safe space for them to flourish without unfairly compromising rights holders’ interests. As proposed in the Copyright Review Report (paras. 2.8.5 and 2.8.6.), the exception will allow copying of copyrighted works for the purpose of data analysis and will cover both non-commercial and commercial activities. However, the exception will not apply where no analysis is performed on the works that have been copied. Furthermore, users must have lawful access to the works (such as through a paid subscription to the relevant databases) and will be prohibited from distributing the works to anyone without such access. Rights holders will be entitled to implement reasonable measures to maintain the security and stability of their computer systems and networks.
Considering the essential role of data in the digital economy, the data analysis exception is no ordinary exception. Having implications far beyond the realm of copyright, the implementation of this proposed exception would support the very creation and dissemination of knowledge for the benefit of Singaporean society. The true beneficiaries of the exception are not its users but the citizens of an economy powered by digital innovation, whose daily lives will be improved in aspects as diverse as education, healthcare, business, financial services and transportation.
Collective management for the collective benefit
Collective management of copyrighted works is crucial to the success of any copyright regime. Such infrastructure gives users simple, cost-effective access to works and offers creators broad access to markets without having to individually negotiate and license their works. Much of this, however, is contingent on having a well-functioning collective management ecosystem that upholds high standards of transparency, good governance, accountability and efficiency. That is the aspiration of Singapore’s newly proposed collective management licensing scheme.
The new scheme was devised with the benefit of feedback from a public consultation in 2017, which was dedicated to the concerns of collective management organizations (CMOs), creators and users in Singapore. It will regulate a previously unregulated space by way of a class licensing scheme administered by IPOS (Copyright Review Report, para 2.15.7). Entities carrying out collective licensing activities in Singapore will fall within the regulated “class” and will be subject automatically to the associated licensing conditions and a mandatory code of conduct. Regulation will be measured and “light-touch” in nature. This means that CMOs will be able to perform collective licensing activities without being required to register with IPOS to do so. Moreover, IPOS will not intervene to set tariff rates or approve license fees but will have the necessary powers to ensure CMOs comply with the licensing conditions and the code of conduct.
The licensing conditions and the code of conduct are the linchpins of the new licensing scheme. Their contours will be shaped by the collective wisdom embodied in the legislation, regulations and codes of conduct compiled in the WIPO Good Practice Toolkit for CMOs (Toolkit). Published in October 2018 by WIPO and based on the input received from WIPO member states and other stakeholders, the Toolkit is a working document that compiles examples of CMO legislation and regulations from 30 jurisdictions and six codes of conduct of national and international CMOs. These are distilled into examples of good practices on a range of issues, including members’ rights, the relationship between CMOs and users, CMO governance, and dispute resolution. While the Toolkit is not a binding document, it will serve as a helpful starting point for Singapore to develop its own licensing conditions and code of conduct in close consultation with stakeholders.
Singapore has collective management in several key areas including music, sound recordings, film and print materials, and as such, the proposed new changes are expected to be pervasive. Every day, often unknowingly, citizens come into contact with works that are managed collectively – in schools, restaurants and shopping malls, at concerts, weddings and other functions. A light-touch licensing scheme means that the higher operational costs associated with regulatory compliance are not passed on to them. More importantly, the proposed new scheme will hold CMOs to higher standards of transparency, good governance, accountability and efficiency and will thereby inspire public confidence in the collective management ecosystem and improve ease of access to works administered by CMOs. In turn, users will be more likely to take up collective licensing solutions and creators will receive additional incentives to create (and license) more works for the enjoyment and education of society.
From recommendations to regulations
Many stakeholders will benefit from the suite of proposed changes to Singapore’s copyright regime, not least members of the public. With the policy recommendations already in place, the next phase of Singapore’s copyright review – drafting the legislative amendments to implement these changes – is well underway. A consultation on the CMO licensing conditions and code of conduct is expected to begin in the second half of 2019, followed, in due course, by a public consultation on the new draft copyright bill – restructured, rewritten and reinvigorated to address the demands of the digital age and serve the needs of many.
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