New Rights for Performers

Next, let me speak about new rights for performers. Clause 51 provides new rights to performers such as the right to control indirect recordings of their performances, the right to be attributed, the right to publish and the right to communicate a recording of their performance to the public.  These rights will enable the performer to control the way his performance is used and exploited in the commercial market.  We are confident these amendments will be welcomed by performing artistes in the music and media industry.

But let me say, Sir, that we have been mindful that the introduction of new rights does not lead to an undue restriction of the fair uses of copyrighted material.  Exceptions to these rights have therefore been provided, for example for educational institutions and libraries.  These exceptions can be found in Clauses 7, 14, 15, 16, 17 and 24.  We have also catered for exceptions in specific situations, such as an exception for the digital transmission of sound recordings within a business establishment, as long as such transmission is not the core business of such an establishment. There are also necessary exceptions to cater for technical processes; for example, temporary, transient, incidental copies that could occur as part of making a lawful communication. In the case of non-interactive transmissions such as webcasting, we have provided a limited right to equitable remuneration. These exceptions can be found in Clause 26 of the Bill which introduces new sections 107A to 107E.

Mr Speaker, these amendments will bring our copyright framework in line with international standards, embodied in international treaties such as the World Intellectual Property Organisation’s Copyright Treaty, the WCT, and the Performances and Phonograms Treaty, the WPPT.  With these changes, Singapore will provide a similar copyright regime to the 49 other member states party to the WCT, and 45 others that are party to the WPPT. 

Removal and alteration of rights management information

Sir, the current Copyright Act already provides civil remedies for copyright owners to prevent the unauthorised removal or alteration of rights management information, or RMI. RMI refers to information which may identify the work, the author, or the terms and conditions of use of that work.  In the digital environment, an example of RMI could be a digital watermark, which incorporates information identifying the author of the work.

For example RMI enables copyright owners to track usage of their works on the Internet. It also gives users confidence in the authenticity of the source of a work, and certainty as to the conditions of its use. It is thus important to protect RMI and to prevent the distribution of copies where such information has been removed or manipulated in order to induce, enable, facilitate or conceal an infringement.

The Bill enhances protection by providing civil remedies against unauthorised distribution or importation for distribution of altered RMI. It also provides civil remedies against the unauthorised distribution, importation for distribution or communication of works or other subject matter in respect of RMI which has been removed or altered. In addition, the Bill also creates a new criminal offence in cases where any of the prohibited acts in relation to RMI are carried out wilfully and for the purpose of obtaining a commercial advantage.

Technological Measures protecting Copyrighted Works

Next, I turn to technological measures protecting copyrighted works. Sir, the advent of digital technology has made it easy to make perfect copies of copyrighted works.  The new technology has made effective enforcement of copyright in the digital realm therefore a more difficult undertaking than for conventional physical works of copyright. So, in order to protect their works from being infringed, copyright owners may employ technological measures to protect their works. These technological measures include access control systems such as encryption, and copy control systems. These technological measures could also include a measure applied to a tangible copy of a copyrighted work, or used in connection with the exercise of copyright. Copyright owners should reasonably expect their efforts in employing such measures to protect their works from infringement not to be thwarted and not to have these technological measures  circumvented.

Accordingly, Mr Speaker, Sir, Clause 59 introduces new Part XIIIA (thirteen A) providing civil remedies and criminal penalties for the circumvention of technological measures used by copyright owners in connection with the exercise of their copyright.  A copyright owner can bring suit against a person who manufactures or trades in circumvention devices, or offers services related to the circumvention of a technological measure.  If the person does these acts wilfully and for the purpose of obtaining a commercial advantage, he may also be guilty of an offence. 

We have also built in review mechanisms that will allow our law to be responsive to technological changes in this area.  Where it has been determined that a dealing with a work or a class of works does not amount to an infringement, and that the legitimate use of these works has been adversely impaired or affected, the Minister has the discretion to exclude such works from the operation of the provisions which I mentioned. 

As before, we have provided exceptions such that legitimate forms of such acts would not be unduly impeded.  These are enumerated in new Sections 261D and 261E.  Briefly, examples of such exempted acts include authorised encryption research, security testing, specific reverse engineering to ensure interoperability, law enforcement, intelligence and other government activities such as defence and security, amongst others.

Sir, having consulted the relevant stakeholders, we will exclude public non-profit organisation and institutions such as libraries, archives and educational institutions that routinely come into contact with large volumes of copyrighted works. These institutions have been exempted from criminal liability, although they remain subject to civil remedies for any violation.  

Mr Speaker, Sir, these provisions will provide greater assurance to copyright owners and improve their ability to protect their copyrighted works from infringement.  We will join the US, UK, Australia, the European Union and Japan in recognising the importance of such measures in protecting copyrighted works from infringement.  

Stronger Enforcement Measures

Sir, all the rights that I have mentioned thus far are only meaningful if they are backed up by a robust enforcement framework, and we have proposed amendments to enhance both civil and criminal remedies to infringement.  Let me touch on the changes now.

Changes to civil procedures and remedies

Presumption of Copyright

First, changes to civil procedures and remedies, beginning with presumption of copyright. Clause 35 of the Bill, Sir,, refines the existing provision under our Copyright Act on the presumption of copyright in infringement actions.  This refinement is intended to facilitate the process of copyright infringement actions, and to render such actions less onerous for the copyright owner. The presumption in favour of the copyright owner plaintiff, namely that copyright subsists in the copyrighted work and that he is the owner of the copyright, will apply so long as the defendant does not satisfy the court that he puts these matters in issue in good faith. However, if the defendant, in good faith, puts these matters in issue, the plaintiff may now, by affidavit, assert relevant facts attesting to the ownership and subsistence of the copyright.  Such affidavit will serve as prima facie proof of the matters asserted unless of course the defendant proves otherwise.

Statutory damages regime

Turning to statutory damages, Members may recall that in June this year, when moving amendments to the Trade Marks Act, we enacted a statutory damages regime as a complement to the current process of assessing damages in an infringement suit.   In this Bill, we have proposed to introduce a similar regime for the Copyright Act.  This provides copyright owners, in an infringement action, the option to choose, in lieu of actual damages suffered, a new remedy of “statutory damages”. This will be especially useful in situations where it is difficult for the copyright owner to prove the quantum of actual losses.  Instead, the court will assess the quantum of statutory damages, based on compensatory principles, elaborated in the new subsection 119(5). This remedy of statutory damages will also be available for the provisions relating to the circumvention of technological measures, rights management information and performances.  This provision will serve as an additional deterrent against infringers.

Criminal Liability for wilful infringement of copyright

Let me turn to criminal liability for wilful infringement of copyright. Mr Speaker, Sir, if I may first generalise, under the current Copyright Act, two types of acts attract criminal liability.  The first involves an act where a person derives benefit by dealing commercially with infringing articles.  A person who manufactures, imports, distributes or sells infringing copyright material is guilty of an offence.  The second type considers the harm the act causes to the copyright owner.  A person who, for non-trade purposes, distributes infringing articles to such an extent as to affect prejudicially the owner of the copyright will also be guilty of an offence.

Now, with the advent of digital technology, the impact of infringement on the interests of copyright owners has as a result become very much more severe.  For example, Internet technology now makes it possible for syndicates to post movies and software for all to download for free, sometimes in return for nothing more than recognition and notoriety.  While these infringers may not directly profit from these activities, their actions may cause substantial harm to the Copyright owner, his investments and his creative efforts.

The new Section 136(3A) provides criminal penalties for wilful copyright infringement, in the case where the extent of infringement is significant, and/or where the person does the act to obtain a commercial advantage.   For the first case, the new Section lists factors to assist the Court in determining if the extent of an infringement is significant – these include the volume of articles that are infringing copies, the value of these infringing copies, and whether the infringement has a substantial prejudicial impact on the copyright owner.   For the second case, new section 136(6B) defines the element of commercial advantage.  Since in either case, a significant infringement, or an infringement linked to a business or trade is involved, and both the extent of harm and the degree of culpability are sizeable, such infringements will attract criminal penalties.

The first-time offender under the new Section 136(3A) will face penalties up to a maximum fine of $20,000 and/or to an imprisonment term not exceeding 6 months.  Subsequent offenders will face heavier penalties.

Limitation of liability for Network Service Providers

Let me turn to Network Service Providers and limitation of liability. Mr Speaker, Sir, the provisions on Network Service Provider liability in this Bill are intended to make NSPs more pro-active in assisting copyright owners to protect and enforce their rights.  In the current Act, NSPs enjoy blanket immunity for acts of infringement of copyright or copyright infringing material on their networks.  In other words, NSPs are completely absolved of responsibility for such acts or infringing material that they host or provide access to.  The provisions in this Bill serve to create a better balance between the interests of rights owners and NSPs, by ensuring that the benefit of immunity that NSPs can enjoy are now accompanied by certain responsibilities.

Sir, in 1999, I noted that NSPs play a vital role in the online delivery of content for both copyright owners and users.  Today, NSPs continue to play key roles in the transmission and routing, as well as the provision of connections to and storage of information.  Thus, the new provisions provide greater clarity as to the different roles NSPs play, and their associated responsibilities for each role. 

Let me stress that these provisions do not mean that an NSP is liable for copyright infringement if it chooses not to meet the requirements to qualify for the immunity.  They only mean that in cases where the NSP chooses not to meet the qualifying requirements for immunity, the NSP’s liability will be governed by the general provisions of the Copyright Act, and the NSP will not be able to rely on the immunity provided by this section.

The new provisions will provide greater certainty for NSPs operating in Singapore, as users and businesses become more sophisticated in their dealings over the Internet.  At the same time, the new provisions would also provide copyright owners with a more accessible course of action to enforce their rights in the event of infringement.  This is particularly important to protect the interests of up-and-coming local content producers and ultimately further our efforts to make Singapore a knowledge economy and a global centre for innovation and creative industries.

Ex-Officio and Border Enforcement

Let me now turn to Ex-Officio and Border Enforcement. Clauses 37 to 42 of the Bill align border enforcement powers with those provided in the Trade Marks Act.  The new provisions will enable authorised officers to detain infringing imports, infringing goods consigned to a local party and infringing goods that are to be exported from Singapore.  In addition, Customs will also have the powers to examine suspected infringing goods, including those in transit. Several other amendments have also been incorporated to make it easier for a copyright owner to initiate the detention of infringing imports by Customs.

Balancing Measures

Mr Speaker, Sir, I have repeatedly mentioned in my speech the need to strike a balance between the interests of copyright owners and users.  Like all IP laws, copyright laws are intended to be an incentive to create original works through the granting of exclusive rights.  This objective can only be achieved if the exchange of information and ideas is not unduly impeded.  Therefore, we have put in place specific exceptions in relation to new rights, and for the public interest organisations such as educational institutions and libraries. 

I will now deal with proposed amendments to the general “fair dealing” provisions, which apply throughout the Copyright Act.  Where an act is determined to be “fair dealing”, it means that it is not an infringement of the Copyright.   

Presently, Singapore has a fair dealing system that permits the use of copyrighted material for specific activities, namely: research and private study, review and criticism, and news reporting. While this system provides certainty, it is also restrictive in that it does not cater for other new uses which could fall under the concept of fair dealing. 

While the current permitted activities have been retained, Clause 9 of the Bill refines our fair dealing system by allowing other acts to be assessed according to a set of factors in determining whether these acts could constitute fair dealing.  We have proposed also a new factor for consideration, namely, “the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price”.

In addition to the new fair dealing amendments, we have provided, in Clause 11, new exceptions designed to ensure that computer-related research is not hampered by the enhanced protection for copyrighted works in the digital environment.

Mr Speaker, these amendments have been proposed after a careful review of the fair dealing provisions in jurisdictions such as the UK, Germany, France and the United States.  I believe they will create an environment conducive to the development of creative works, and also facilitate greater investment, research and development in the copyright industries in Singapore.

Transitional Provisions

Overall, Sir, let me say that the Bill also includes transitional provisions to ensure that new rights do not interfere with prior arrangements between contractual parties.  Rights under any contracts entered into before the operation of this new law will be governed under the previous Copyright law.

Conclusion

Sir, in conclusion, let me say that these amendments, while fairly complex and technical, are necessary to update Singapore’s Copyright legislation to meet the needs of businesses, creators and users in the fast-evolving digital age.  It provides enhanced enforcement measures to encourage stakeholders in the creative industries to further engage in high value-added activities in Singapore.  It also provides balancing measures to ensure that our Copyright laws serve to foster greater creativity in Singapore.  In short, the Bill will provide Singapore with a copyright system comparable to the most advanced countries in the world. 

Sir, I beg to move.

Source: Ministry of Law Press Release 16 Nov 2004