The team is joined by Guest Kats Rosie Burbidge, Stephen Jones, Mathilde Pavis, and Eibhlin Vardy, and by InternKats Verónica Rodríguez Arguijo, Hayleigh Bosher, Tian Lu and Cecilia Sbrolli.

Thursday, 6 July 2017

Changes to the Singapore copyright system: an update on the recent public consultations

Singapore view
Last year The IPKat reported that Singapore Government had launched a public consultation regarding a forthcoming review of its copyright law.

How have things developed ever since? Katfriend Edoardo Di Maggio (J.D. Candidate at Singapore Management University) explains.

Here’s what Edoardo writes:

“Singapore’s copyright regime is going to experience BIG improvements. In 2016, the Government (the Intellectual Property Office of Singapore (IPOS) together with the Ministry of Law (MinLaw)) launched a public consultation on proposed changes to the copyright regime (further information can be found here). The 2016 public consultation addressed a wide variety of issues, ranging from the creation of a voluntary copyright registration system to the implementation of technological protection measures (see here).

2017 is going to be as innovative as last year. Earlier this year MinLaw and IPOS launched a public consultation on the copyright collective rights management eco-system in Singapore. The consultation ended on 23 June last (see here).

Copyright Amendment Symposium

The results of the public consultation held in 2016 are still under scrutiny. Nonetheless the Intellectual Property Students Association of Singapore (IPSA) was pleased to share the results at the insightful Copyright Amendment Symposium (further information is available here). During this event, legal experts and representatives of IPOS and MinLaw shared their views and discussed possible outcomes of the consultation. There was a reasonable amount of comments on the relevant amendments to the Singapore Copyright Act (CA). Provided that the results on the consultation are still under scrutiny, the exchange of views suggests that CA is going to change its face quite radically.

Among other things, MinLaw is considering whether to assign the copyright of a commissioned work to the commissioner or to comply with the criterion of first ownership for the original author In addition, the scope of the defences available to claim moral rights on a work are going to be extended. On the other hand, MinLaw expressed interest in removing letter (e) Sections 35 and 109 CA, relevant for fair dealing. Letter (e) CA provides the defence of fair dealing as follows:

“(e) the possibility of obtaining the work within a reasonable time at an ordinary commercial price [emphasis added].”

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In the words of Prof. David Tan (National University of Singapore) “letter (e) seems to be a requirement for the defendant to conduct reasonable investigations to determine the possibility of obtaining the work; where there is no possibility of doing so, the factor weighs in favour of fair dealing [emphasis added]”. From a cost-benefit perspective letter (e) is a dilemma when it comes to be considered as a requirement rather than a factor (start-ups and remixed works beware!). And since Singapore Courts have yet to solve this question, letter (e) will be likely eliminated. At the same time courts will retain the discretionary power to re-consider it where appropriate.

Substantial change in the copyright collective rights management eco-system in Singapore

The recent 2017 public consultation on the copyright collective rights management eco-system is part of the strategy to improve copyright regime in Singapore and it is deemed to bring a gust of fresh air to the premises of collective management organisations (CMOs). In order to keep up with the speed of digital age Singapore government has identified key areas of improvement for its collective rights management eco-system.

In particular, the enlargement of the economies of scale that CMOs currently enjoy is a consequence of technological and business changes arising from the digital disruption in the fields of creation, distribution and use/consumption of copyright works. On top of that, Singapore CMOs lack a proper regulatory framework capable of facing increasing demand of works.

It is needless to say that the CMOs code of conduct (see here) is unable to meet the current demand. In order to fill this gap, MinLaw and IPOS are focusing on the functioning of the collective rights management eco-system in compliance with the principles of transparency, accountability and good governance espoused by the WIPO TAG of excellence programme (see here).

The public consultation takes into account the three-tiered functioning of a CMO, namely licensing works for use (i), collection of license fees from users (ii) and distribution of royalties to creators (iii). In addition, the consultation paper provides the hypothesis of a neutral external forum to resolve possible disputes of royalties’ distribution. Part IV of the paper is dedicated to the international experience and the possible model of governance to adopt. As is evident the enactment of the dispositions requires some effort from both CMOs and users/creators of copyright works. The consultation paper warns more than once that its implementation is going to cost.

At the same time, Singapore is in the running for a rosy digital future. As a consequence, Singapore Government will keep its promises and expectations on the successful implementation of any possible consultation paper. Whatever may be the outcome on the CA and future collective rights management eco-system, both public consultation papers would perhaps tip the balance in favour of the authors and confine additional limitations and exceptions to the freedom of the contracting parties.

See further:
·       Tay Jing Eng, ‘Summary of Proposed Changes to the Copyright regime in Singapore’, Copyright Amentdment Symposium, IPSA, 23 September 2016

·     David Tan, ‘The Unbearable Lightness of Fair Dealing’, (2016) 28 SAcLJ”

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