Singapore’s Copyright Act Revisions: A Step in the Right Direction, But….

Singapore’s long awaited and long debated revisions to its copyright law were tabled in Parliament at the beginning of July with a view to enactment by the end of summer. This follows a two-month public consultation by the Law Ministry and Intellectual Property Office. The revisions have been in the works for some time, beginning with consultations in 2016 and 2017 culminating in the publication of the Copyright Review Report in 2019. What is the upshot? Will these revisions address the concerns of rights-holders? The answer is a qualified “yes, but”.

The fundamental objective is to update copyright law for the digital age, a challenge faced by many governments. The consultation that concluded in April was to finetune application of the proposals brought forth in the 2019 report, not to add to or subtract from them. One of the major changes is to update language in the legislation to use of “plain English”, to make the law more accessible. While laudable and understandable, the devil is always in the detail when it comes to translating well understood legal concepts into layman’s language. This can potentially lead to misunderstanding on the part of the public and potentially to further litigation, which could have been avoided. A good example is the introduction of the term “permitted use” to describe not only legal exceptions to copyright but other “permitted uses”. There is ample scope for confusion here. It is important for the public to understand that the copyright owner is not permitting the use; in fact in the case of a legal exception or a fair use, no permission is required. It would have been far better to be precise, noting that a fair use is a legal exception to a copyright holders’ monopoly right, not one that has been “permitted” as in the case of a licensed use.

As stated in the preamble to the 2019 report, the intent of the revisions is to enhance creator’s rights by introducing a new right of attribution, change the default ownership of commissioned works in favour of the creator (although this can be modified by contract) and enact new enforcement measures to crack down on the sale of Illicit Streaming Devices (ISDs). These are devices that, when combined with related software, provide unauthorized access to streaming content. They are sold openly in Singapore and often advertised as providing access to “free content”. The revisions will also provide some additional exceptions to users, such as broadening the education exception for students and non-profit schools (but only for content freely available on the internet, allowing content providers to put content behind a paywall), exceptions for text and data mining, adjusting fair use criteria, and facilitating the works of the GLAM (galleries, libraries, archives, museums) sector, among other objectives. Some of these exceptions, if not applied carefully, could be problematic.

One of the most positive elements of the revisions for creative industries is the new provision that makes it illegal to sell set top boxes (aka Illicit Streaming Devices) and associated software applications that offer access to pirated content (movies, television shows, sports events), or to advertise that they provide access to such content. The infringing content is hosted on pirate sites outside Singapore and accessed by consumers in Singapore by purchasing ISDs openly sold in shopping malls and electronics markets. In most instances, ISDs themselves do not contain pirated content, as used to be the case with illicit DVDs, but they provide the means of access once configured to do so. Merchants will either offer a configured device or provide the purchaser with the means to access the infringing content, through software or a website. In some instances, purchasers even agree to pay for access to the content, mistakenly believing that this legalizes their conduct—while congratulating themselves on the terrific “deal” they just got. Pirate websites can easily afford to undercut legitimate content providers since they are stealing the product and then reselling it. It’s a great business model for the pirates.

I have written about the difficulty of dealing with sellers of ISDs in the past. (here, here and here). It is a problem in many countries. Unless the law is very precise, bad actors will try to deny culpability by proclaiming that they are “shocked, shocked” that their customers are using what amount to burglary tools to commit burglary. The new provisions in Singapore, although a long time in coming, should deal with this by targeting retailers who, although selling a “clean device”, facilitate the loading of the apps that provide access to pirated content or provide instructions on how to modify the device, or advertise that their devices provide access to unauthorized content. This should largely constrain the ability of those retailers who knowingly sell devices for the purpose of accessing pirated streaming content to escape legal consequences. The penalties will be significant and can be both civil and criminal, including jail time.

In an interesting initiative even prior to the new law coming into effect, StarHub, one of the main pay-TV providers in Singapore, is offering consumers who have purchased the boxes that are soon to be outlawed the opportunity to exchange them, at no initial cost, for a StarHub box. For turning in their pirate box, consumers will get two years of free rental of a StarHub box if they sign up for StarHub’s subscription service. Even though the new law is focused on retailers and not consumers, the StarHub initiative gives consumers who may have purchased an ISD hoping for “free” content an additional incentive to “go legit”. This is important because surveys have shown that watching pirated content is, unfortunately,  widespread in Singapore. With the new law targeting the sale of ISDs combined with numerous and growing legitimate content offerings particularly in the VOD space, hopefully Singaporeans will be as law-abiding regarding content consumption as they are in other areas of the law.

Another provision of potential concern is the tinkering that has been done with Singapore’s fair use provisions. Singapore instituted a hybridized fair dealing/fair use regime some fifteen years ago. Certain fair dealing exceptions, such as “criticism and review”, “research and study”, and “current affairs and news reporting” exist in Singapore’s copyright law combined with an open-ended fair use provision that, until now, has been subject to five “factors”, four of which align with US legal practice. In determining fair use, the Singaporean courts currently consider;

(a)    the purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes;

(b)     the nature of the work or performance;

(c)     the amount and substantiality of the portion used in relation to the whole work or performance; and

(d)    the effect of the use upon the potential market for, or value of, the work or performance.

(e)    the possibility of obtaining the creative work within a reasonable time at an ordinary commercial price

The fifth factor, which helped protect rights-holders against fair use claims exploiting the argument that unauthorized copies were justified because of the unavailability of certain content in Singapore, has now been dropped. The Ministry of Law argues that it is subsumed in the fourth factor, effect of the use on the potential market, etc, but this is not as explicit as the previous wording in providing guidance to the courts. However, the Ministry appears to have listened to input provided by stakeholders during the public consultation and the explanatory statement to the Bill now explicitly states that the removed fifth factor may “still be considered where relevant”. In addition, the existing fair dealing exceptions will now be made subject to the four fair use factors, which will provide some additional balance.

While the anti-piracy provisions in the soon-to-be-adopted law will help close a significant loophole that allowed retailers to openly advertise set top devices that provided access to pirated content, much will depend on court interpretations of the new revisions. Creators will be happy that a right of attribution has been enshrined as an additional moral right while photographers will be pleased that they will now enjoy default ownership of copyright in their works (as is the case in many other countries). The GLAMs will more easily be able to show AV performances or make copies for specific purposes. There will now be a specific exception for text and data mining in addition to the general fair use provisions, but the key here will be the possible impact on the commercial interests of copyright owners since the exception applies to both commercial and non-commercial use and goes further than similar provisions in, for example, Japan and the UK. In fact, Singapore’s text and data mining exception is arguably overly broad. A good analysis of the pros and cons of the various provisions is available on the website of this international law firm.

The old saying that “you can’t please all of the people all of the time” is certainly applicable to copyright law and is relevant here. The revisions bring in some long-overdue changes, particularly with respect to dealing with the open sale of devices providing access to pirated content. The hybrid fair dealing/fair use model, now to be unambiguously called “fair use” in Singapore, will lead to some legal uncertainties that will no doubt have to be worked through the courts. The flip side of the touted “flexibility” of a fair use system is the uncertainty that it generates as, theoretically, any unauthorized use can be argued to be “fair” and will need to be evaluated according to the established criteria and legal precedent, much of which does not exist in Singaporean jurisprudence. Other provisions are not particularly controversial and will help creators, especially the attribution right. Overall, the revisions are generally a step in the right direction—but there is always room for further improvement. The Bill will go for Second Reading in September so perhaps some of the shortcomings will be addressed as it moves through the legislative process.