Copyright law update: Singapore government recommends significant changes that will impact IoT, data analytics, AI and other digital businesses

Written on 15 Feb 2019

The proposed changes are significant for the copyright landscape in Singapore and will significantly impact digital businesses. They include the establishment of an exception against infringement for data analytics, a new right of attribution, and a new licensing scheme for collective management organisations. Existing rules outside the Copyright Act would remain applicable, including data protection rules set out across multiple statutes.

On 17 January 2019, Singapore’s Ministry of Law (MinLaw) and the Intellectual Property Office of Singapore (IPOS) released the Singapore Copyright Review Report.

MinLaw and IPOS started the review process in August 2016, when they published an extensive 53-page consultation paper on 16 issues in copyright law to be considered. You can read our summary of this consultation paper here.

Subsequently in May 2017, another consultation paper was published. This paper concerned the copyright collective rights management ecosystem in Singapore.

In this 2019 Report, multiple recommendations were made based on the 2016 Paper and the 2017 Paper, and taking into account the subsequent inputs from the public during the two respective consultation periods.

We examine the main recommendations of the 2019 Report in the following table.

s/no Proposal considered in the 2016 Paper or 2017 Paper Existing position under Singapore copyright law Position taken in the 2019 Report
1 Establishment of a voluntary copyright registry. Currently, Singapore does not have a copyright registry. A voluntary copyright registry would likely assist in ascertaining copyright ownership. A voluntary copyright registry will not be established.
2 Review of the rules on copyright ownership in commissioned works / works produced by employees. Creators granted default ownership of copyrighted works except in cases involving commissioning of certain works.

Default ownership of commissioned photographs, portraits, engravings, sound recordings and cinematograph films, would be with the creator instead of the commissioning party.

Current default ownership rules would be retained for journalist-employees.

Current default copyright ownership would be retained for employers.

Employers would be given default ownership of the rights in other subject matter such as sound recordings and cinematograph films created by employees.

3 Review of the duration of protection for works across various categories. In some cases, duration of protection is calculated from the date of publication, meaning that unpublished works would potentially have an indefinite period of protection so long as they are not published. Duration of copyright protection for unpublished works to be the same as published works – 70 years after death of creator.
4 Establishment of a new right of attribution. Currently, an author or a performer does not have a right to be attributed or credited; only a right to prevent false attribution.

There is to be a new right of attribution for authors of literary, dramatic, musical and artistic works in relation to these works and adaptions of them, and for performers for performances.

This right is to be personal to the author or performer and non-transferable. It will last for the duration of copyright protection.

It will not apply to certain specified works and performances such as computer programmes or work created in the course of employment.

5 Establishment of a website to provide key resources for content creators and publishers/ producers. Various sources of information available for content creators and publishers/producers, but no centralised informative website as envisioned in the consultation paper. No express commitment to such an informative website. Proposal now is for the government to collaborate with industry associations to develop sector-specific information resources.
6 With respect to the fair dealing exception, to delete the factor taking into account the possibility of obtaining the creative work within a reasonable time at an ordinary commercial price. Fair dealing is a defence to a copyright infringement claim. In deciding whether the fair dealing exception applies, courts must take into account the factor on the possibility of obtaining the creative work within a reasonable time at an ordinary commercial price. Fair dealing exception tweaked to emphasise whether the use is “fair”, removing the factor which suggests that exception may be restricted by agreement.
7 Exemption for users of orphan works from infringement. Currently, there is no such explicit exemption. Orphan works registry considered but will not be established. Further deliberations required on measures to take to allow for use of orphan works.
8 Exemption for text- and data-mining for data analysis purposes from infringement. Currently, there is no such explicit exemption. There is to be a new exception for data analysis.
9 A purpose-based exemption for education uses from infringement. Current exemptions are narrow and have accompanying conditions. They do not comprise a general exemption for education uses. There is to be a new purpose-based exemption for education uses, which will include online work.
10 Exemptions for galleries, libraries, archives and museums from infringement. Current exemptions do not support certain activities of these institutions, for example, making copies of rare works including digital copies and performing. There are to be new exceptions to allow galleries, libraries, archives and museums to make copies or perform for the purposes of exhibition and/or record-keeping.
11 Adjusting existing provisions to further benefit print-disabled users. Exceptions benefiting print-disabled users are already present. Authorised entities will no longer be obliged to pay equitable remuneration to copyright owners for making, distributing or making available copies of works in accessible formats for print-disabled users.
12 Exemption for dissemination of non-patent literature for certain functions from infringement. There are currently no explicit exemptions to allow for the dissemination of non-patent literature for the purposes relating to a patent application. There is to be no new exemption for use of non-patent literature. The general fair dealing exception could still be applied.
13 Exemption for copying materials on official government registers. Uncertain whether permission is required when copies are made of materials on official government registers. There is to be a new exception to facilitate access to materials on statutory registers or registers which are accessible for inspection by members of the public.
14 Prevention of certain exceptions to infringement from being restricted by agreement, especially with respect to the fair dealing exception. Fair dealing exception, as well as other exceptions, allowed to be restricted by agreement. There is to be a rule against the enforcement of contractual terms which attempt to override exemptions to infringement, on the condition that the contractual terms are unreasonable.
15 Enhancing the collective rights management landscape in Singapore. Collective management organisations (CMOs) help to manage copyrighted works for owners, based on existing copyright law.

There is to be a class licensing scheme for CMOs to be administered by IPOS. This scheme would apply to collective licensing activities in Singapore, and would be backed by a mandatory code of conduct.

A public consultation on the licence conditions will subsequently be conducted for CMOs, creators and users to provide input.

16 Proposed extension of the list of allowable circumventions of technological protection measures. Changes were made by way of the Copyright (Excluded Works) Order 2017, after taking into account the feedback given after the 2016 Paper. This was proposed in the 2016 Paper to cover preservation by libraries, among other activities. The implementation of the Copyright (Excluded Works) Order 2017 covered this proposal.

The new issue of set-top boxes

Interestingly, the 2019 Report dealt with an area not raised in either the 2016 Paper or the 2017 Paper. This was the issue of streaming of content from set-top boxes, which was reported extensively in the local press in the days following the publication of the 2019 Report. The 2019 Report noted that some respondents to the 2016 Paper had raised this issue, and MinLaw and IPOS felt this was an important issue for the government to deal with.

Under the current copyright regime, it is unclear whether set-top box retailers would be liable for copyright infringement. A major issue stems from the fact that set-top boxes typically do not have content pre-loaded into them when the retailers are in possession of them. This makes infringement difficult to prove.

The 2019 Report recommends having express provisions to impose civil and criminal liability on persons who wilfully make, import for sale, commercially distribute or sell a set-top box which can be used to access content from unauthorised sources, or who provide services to enable these devices. The new provisions would thus outlaw set-top boxes aimed at providing access to infringing content to users.

What to expect in 2019

We anticipate a further public consultation on the licence conditions for CMOs sometime this year. It is unclear when the government will produce a draft bill for the amendment of the Copyright Act pursuant to the 2019 Report, but given that the review has been ongoing since August 2016, we are expecting a draft bill at some stage this year, or else early next year.

Businesses should be cognisant of the fact that the proposed changes to the copyright regime would not affect the application of other rules, such as data protection rules. For example, although with the proposed changes, IoT service providers may not be infringing copyright, they would still have to obtain the requisite consent under the Personal Data Protection Act. Another example is the continued application for confidential information under the Banking Act.

Please do not hesitate to reach out to us if you have any concerns on the above.