Copyright Bill

Mr Louis Ng Kok Kwang (Nee Soon): Sir, there is now increasing diversity of how content is created, distributed and used in the digital sphere. This Bill to strengthen Singapore’s copyright regime is necessary and timely.

 This Bill will be important in encouraging creativity and protecting creators and their works, carving out crucial fair use exceptions and strengthening the copyright ecosystem. That said, I have three points of clarification. 

 My first clarification is on the safeguards on the permitted use of materials for text and data mining for analytic purposes. Section 244 permits the copying of the works for the purposes of computational data analysis. Under section 187, creators are not allowed to restrict this by contract.

 It is not clear why we have designed such a specific carve-out. Why should creators not have the power to protect their works specifically from being the input data for some machine-learning model? What is the principle behind this special condition?

 We should note that the results of computational data analysis may be extremely profitable and it is not necessarily the case that the original creators may know or be comfortable about their work being used in this way.

Can the Ministry share how it intends to ensure a balance between allowing the use of works for computational data analysis and the interests of copyright holders? 

My second point relates to enforcing the new right of attribution. Part 7 of the Bill provides a moral right for the author of a work to be identified if another person causes that work to be published.

I welcome this development as it gives creators recognition for their efforts and respects their work. However, in practice, independent or smaller creators with limited resources may not easily be able to monitor publications of their works and enforce their rights. Even if creators discover a breach of their rights, they have to bring an action in Court under section 383. In that scenario, the legal costs might be too high to make enforcement worth it. Further, the available remedies under section 385 include injunctions and damages. It may not be cost-effective for creators to seek injunctions and damages may be difficult to prove and quantify. 

 Can Minister share if additional measures will be taken to help these creators enforce their rights? For example, will the Ministry consider creating a special Court process or use the Copyright Tribunal for a cost-effective means of enforcement.

My third point of clarification relates to the expanded rights of creators. I support this new default position in the legislation. 

Under the new Copyright Act, creators and performers have the right to be attributed when their work or performance is used. Also, creators of certain works including commissioned photographs, portraits and engravings will be granted default copyright ownership.

 These new rights are supposed to give individual freelancers and creators from small- and medium-sized enterprises greater bargaining power to negotiate better terms with commissioning parties. 

 However, the contrary may also be true. These default positions can be restricted and excluded by contract. The safeguards are that the contract must be individually negotiated and the contract term purporting to restrict the exception must be deemed to be “fair and reasonable”.

 There is often a power imbalance with creators on one end and publishers and producers on the other. Publishers and producers may use these same rights against creators. Publishers and producers are likely to favour contracting with creators willing to cede copyright ownership rights to them, rather than one who wishes to retain it or negotiate better terms.

 I understand that the Ministry views legislative intervention a blunt tool in addressing these issues. I am also aware that the Ministry instead plans to collaborate with industry associations to develop sector-specific self-help resources. That said, can the Minister clarify if there are additional resources that will be put in place to level the playing field further? 

 As individual freelancers and small- and medium-sized businesses lack financial resources for litigation in the case contract terms are found unreasonable, what alternative avenues of recourse are available to this group? 

Sir, notwithstanding these clarifications, I stand in support of the Bill.

Mr Edwin Tong Chun Fai (The Second Minister for Law): Mr Speaker, I thank the various Members who have spoken for their support of the Bill. Their speeches illustrate some of the competing issues that we face when designing this Bill. Having more exceptions and making inroads to free use or widening fair use all mean less recognition for creators, less remuneration that they receive for their works. Conversely, too tight a framework on copyright with less exceptions, tighter fair use, might mean that public interests and access might then not be fulfilled.

So, in designing this Bill, we have had to tread a balanced path, look at all the competing interests and balance it one against the other and find a path that at once, allows public interests in content but at the same time, creates an environment where creators can be recognised and attributed for their works.

Sir, Members have raised various suggestions and questions on the Bill. Broadly, in four categories as follows: one, some of the difficulties that rights owners might face; second, clarifications on some of the changes; third, they have raised several suggestions for further changes to be considered; and finally, the communication of these changes to the public.

I will address Members' queries in these four baskets.

Mr Louis Ng, Assoc Prof Jamus Lim, Ms Yeo Wan Ling and Mr Patrick Tay highlighted that the change in the default rules of ownership helps to put creators in a better negotiating position. But creators who are freelancers or small business owners might still face the imbalance of negotiating power that can negate the benefit of the change.

Sir, this Bill provides for a change the legal position for default ownership, in favour of creators. But we cannot, however, legislate for negotiating power. The Bill would not be able to take into account the relative considerations in every commercial negotiation. 

For example, if we legislate that creators will always have ownership, regardless and do not allow contracts to change this position, this might not cater for situations where the creator wants to assign or sell his or her own copyright for good commercial reasons. 

Creators should instead consider coming together, forming industry associations to develop industry best practices to represent them.

A good example is NTUC's Freelancers and Self-Employed Unit. They advocate for best practices. It seeded an industry association, the Visual, Audio, Creative Content Professionals Association, or VICPA; worked with Law Society Pro Bono Services to develop and publish a handbook, "Advocate for the Arts: A Legal Handbook for the Creative Industries".

The UK Society of Authors and the Australian Society of Authors similarly support their members in the same fashion.

We will continue to work with Government agencies overseeing the development of the various industry sectors to encourage and to support the development of industry associations and industry best practices. 

Encouraging organisations who commission works to act more reasonably is another factor that would help the current situation.

Mr Patrick Tay had a couple of good suggestions on how the public sector can lead by example and how service buyers can be educated on basic contract principles. We will continue with our education efforts within the public sector on these procurement issues and also work with Government agencies to explore how we can educate other service buyers.

On enforcement, Mr Louis Ng, Mr Yip Hon Weng, Mr Patrick Tay and Mr Shawn Huang highlighted that creators and performers may lack the financial resources to take enforcement action against infringers. 

Mr Louis Ng, in particular, asked whether there could be a special court process created or whether the Copyright Tribunal could be a cost-effective means of enforcement. Mr Yip Hon Weng suggested that there could cheaper alternatives such as mediation for freelance creatives.

We have received much of this feedback and discussed it a lot with stakeholders during public consultations. A solution would have to stretch beyond the current legislative amendments. We will ensure that there are cost-effective enforcement options available and that creatives who are individuals or small business owners will be made aware of them.

First, IPOS runs the IP Legal Clinics. Its aim is to provide creators and performers a quick and easy way to assess their situation, to decide if they own the copyright, what is the level of infringement, what the next steps might be.

Typically, there is a 45-minute session with an IP specialist lawyer. Advice can be sought on any IP infringement issue, including enforcement options. The costs are fully reimbursable by IPOS.

In general, many clear situations can be resolved by a simple letter asserting rights, by telling the alleged infringer of the rights and asserting them, and asking that the user then stop their actions, pay the licence fee or, in the appropriate cases, give credit for the application. 

Second, we are continuing to make Court processes more accessible to creators and performers. Members might recall that in 2019, I mentioned during the Second Reading of the Intellectual Property (Dispute Resolution) Bill that MinLaw and the Supreme Court were looking into the introduction of a specialised IP litigation "track" in the High Court with simplified processes and cost-saving features. That simplified process track is about to be introduced and more details will be announced in the coming months.

Finally, we appreciate the importance of efficient and cost-effective alternative dispute resolution mechanisms such as – as Mr Yip Hon Weng has suggested – mediation. 

I believe the fees mentioned by Mr Yip Hon Weng are for mediation of copyright disputes in Singapore under the auspices of WIPO's Arbitration and Mediation Centre, or WIPO AMC. These fees are in fact the result of IPOS' existing collaboration with WIPO AMC to reduce mediation costs for copyright disputes and are already highly subsidised.

That said, we are already exploring with other Government agencies on how to make mediation even more accessible. I am happy to hear that Mr Yip Hon Weng subscribes to this as well and we would be happy to take on board his suggestions. 

Mr Yip Hon Weng and Mr Don Wee asked how creators and performers can enforce against people outside Singapore. I think Ms He Ting Ru also raised the same point. 

A fundamental point is that copyright laws are territorial. They protect copyright within the territory, that is, Singapore. Our copyright regime allows rights owners to enforce against acts of infringement that occur in Singapore, regardless of whether they are by a local or a foreigner. But the key point is that these are infringements that take place within our jurisdiction. 

Likewise, other countries have similar copyright regimes which allow rights owners in Singapore to take action against acts of infringement that might occur in their countries. 

Several Members had questions on the details of the changes and I will now turn to a few of them.

Mr Lim Biow Chuan asked whether, instead of written agreements, oral agreements can be used to change the default position. Mr Don Wee asked how past contracts are treated with the change in the default ownership for commissioning situations. 

Sir, oral agreements can and oftentimes will present evidential difficulties when there is a dispute. The intention here is not to add on a further overlay of disputes. Consumers typically are even more vulnerable between the two parties if oral agreements are allowed. It is often going to be one man's word against another. But having said that, we will consider Mr Lim Biow Chuan's suggestion, which is a good one, for a template for a written agreement of copyright ownership.

Clause 135 of the Bill clarifies that contracts entered into prior to the effective date of this Bill will not be affected by the changes I spoke about. This ensures that the existing contractual arrangements which have already been entered into will not be affected by this Bill.

Mr Don Wee had a question on the challenge for users to identify the creator or performer. I had mentioned it earlier but let me just reiterate. There will be appropriate exceptions where identification would not be needed. For example, when the identity of the creator or performer is not reasonably ascertainable.

Assoc Prof Jamus Lim asked about the duration for protection and whether these are based on our international obligations. He might know that we are bound by the United States-Singapore Free Trade Agreement (USSFTA) and the European Union-Singapore Free Trade Agreement (EUSFTA), which have a minimum duration of protection. That is what we have provided for in this Bill. 

This is higher than what other countries are bound to and this stronger protection of IP is balanced in this case by the various permitted uses in the Act, which I had discussed earlier and which Members had spoken about. 

Second, Assoc Prof Jamus Lim also asked about new provisions on sound recordings and whether they are EUSFTA obligations. They only add new rights related to public performance and broadcasting of sound recordings.

It should be noted that we already protect sound recording rights today, for example, to prevent copying. To our knowledge, based on the extensive feedback and the industry consultation, there is no evidence that this protection, which also exists in other countries, would inhibit creativity in new areas. 

Third, Assoc Prof Jamus Lim also asked about the change of default ownership and I think he spoke about the employer-employee relationship. This is based on international industry and legislative norms, including what the UK does for their framework. This was also discussed with stakeholders during our consultations and public consultations. The point really is, the Bill sets up a default position from which parties can negotiate. And I think that is a point Assoc Prof Jamus Lim also raised.

The point is that the position in law, as set out in this Bill, is the starting point. Parties then negotiate away from that position. But there has to be a starting position, as a default. 

Mr Lim Biow Chuan asked whether there would be a loophole that consumers can buy from other countries set-top boxes that stream unauthorised sources of content. The new provisions impose liability on those who deal commercially with such boxes, like sellers, but not the buyers of such boxes. This was done having regard to striking a right balance. 

Prevalence of such devices and services is an issue around the world. Different countries are at different stages of dealing with this issue. Eventually, it is likely that these devices and services will also be banned or legislated against in other countries too.

Mr Lim Biow Chuan also asked whether the permitted use in relation to Internet materials for educational purposes for non-profit schools could be used by for-profit schools, charitable organisations or Institutions of a Public Character (IPCs), and if not, whether it could be extended to them. Again, the point I made at the outset is, we strike a balance. The more inroads you create in terms of exceptions or fair use, the less likely it is that creators and content owners will be appropriately remunerated for their content.

So, here is a balance and we believe that clause 83, which defines educational institutions that can benefit from this permitted use, strikes the right balance, requiring them to be non-profit, generally covering full-time education and also includes training for adults for their profession. 

Mr Lim Biow Chuan asked about charitable organisations and IPCs. They can avail themselves of this permitted use if they fall within the criteria of clause 83.

As I mentioned, this is a balanced position. Copyright owners' interests also need to be considered when we legislate. Around the world, copyright permitted uses for educational purposes only cover non-profit schools in general.

Even if for-profit schools, charitable organisations or IPCs cannot avail themselves of this permitted use, there could be other permitted uses or exceptions which might apply, like fair use.

I believe Assoc Prof Jamus Lim mentioned what happens in a situation where you want to use the material for non-educational but knowledge-based think tanks, if I heard him correctly. In this situation, the fair use does not prescribe restrictions to the type of organisations which might avail themselves of the fair use. 

On computational data analysis, several Members asked some questions. 

Mr Don Wee asked about the safeguards for rights owners, particularly in light of the growing use of artificial intelligence (AI) and machine learning. Mr Shawn Huang asked whether the permitted use would treat rights owners whose work is instrumental to the outcome of the computational data analysis differently, such as requiring attribution or protecting their commercial interests. And Mr Louis Ng asked why it cannot be restricted by contract. 

Let me first highlight to Mr Don Wee that the definition of computational data analysis is broad enough to include AI and machine learning. I think I mentioned that in my initial speech. The conditions of permitted uses were developed with that in mind. 

To answer Mr Shawn Huang, let me explain the principle behind permitted use. Computational data analysis treats the works as data points and does not make use of the expressive nature of the works, which is what copyright fundamentally seeks to protect. In short, because computational data analysis does not itself make use of the expressive nature of the works, the rights owners' reputational and commercial interests are not adversely affected.

To Mr Louis Ng's question, many permitted uses can be modified or excluded via reasonable contract terms. However, some permitted uses are mandatory for public policy reasons because the benefit of that particular permitted use could be drastically reduced or even non-existent if we allow contracts to modify its application. So, we protect certain categories which are necessary for public policy reasons, and computational data analysis is one such category. 

The benefit of data analysis improves as the set of underlying data used is as complete as possible. Having specific databases locked out of the analysis because of contractual restrictions would make the results less useful, or worse, create bias or inaccuracies. 

Therefore, it is important not to allow private contractual provisions to override this permitted use. It supports the development of useful applications of data analysis, which is indispensable to the current digital economy.

In addition, this permitted use only covers materials to which a user must have had lawful access, such as by paying the subscription fee for the database. So, where the creators or publishers of the materials charge fees in order for users to access such works, that revenue would not be affected.

Mr Yip Hon Weng asked whether the new permitted use that allows for dissemination of materials by the Government would also allow such content to be incorporated or compiled into an existing publication.

The short answer is yes. Copying it, whether a part of it or the entirety of the materials is allowed if done for the permitted purposes and the permitted use does not prevent any parts that are copied from being combined along with other materials. 

On fair use, Mr Don Wee, Mr Lim Biow Chuan and Ms He Ting Ru had some questions on the changes that we have made to fair use. Let me just explain the changes and then, take the Members of the House through how this is contemplated to work with the Courts.

The question that has been asked is whether fair use has been reworked into an open-ended exception that requires the Courts to make a determination on a case-by-case basis and whether, with the fifth factor removed, the point that Mr Wee specifically bought up, we are now providing less guidance to the Courts. 

Let me assure both Mr Wee and Ms He that this provision has always been an open-ended one, requiring a case-by-case determination by the Courts, even on the existing regime in the present Copyright Act.

I would also add that despite dropping the fifth factor, the Courts can still consider that factor when relevant. We dropped the fifth factor because there was market feedback by stakeholders that it lent itself into confusion. Because of the language and because of the way in which it was framed, users had assumed, in many cases, wrongly, that they first had to procure a licence before they could get within the rubric of the fifth factor.

Members would also know that clause 191 requires the Court to consider "all relevant matters" in deciding whether a work or a performance is fairly used. 

So, the removal of the fifth factor simply means that the Court only needs to consider that factor when it is of the view that that factor is relevant. So, it does not make it irrelevant. What the current Bill does is it provides for the four factors, the Court considers all four factors. But in the appropriate case or in such cases which are particularly fact-sensitive, the Courts can still consider this.

And in fact, this is what the Chief Justice said in a leading Court of Appeal decision in Global Yellow Pages. The Court of Appeal, without taking Members through the decision in detail, opined that looking at fair dealing as it currently is called, is overall highly fact-sensitive inquiry that has to have regard to all the circumstances. All the factors must be considered but the Court, of course, understands the facts, ascertains the context, looks at the parties' relative position and then, assigns the appropriate weight to each factor and makes an overall determination whether a dealing is fair or otherwise.

So, this approach will continue and the Court will have regard to each case, looking at the facts. And I think if you look at the construct of the fair use exceptions, this is precisely what it is intended to do – to allow the Courts, the adjudicators to look at the specific factual matrix behind each contention for exception or for use.

Next, let me touch on the CMOs which several Members spoke about.

Mr Lim Biow Chuan asked whether the Government would be regulating the amount of royalties to be paid to CMOs and what recourse users have if the amount is unreasonable. Mr Shawn Huang asked how the regulations could affect foreign CMOs. Mr Raj Joshua Thomas suggested that CMOs may need more time to adapt to the regulations and it should not be too onerous as to be prohibitive to new entrants. 

As I mentioned briefly earlier, our regulations proposed in this Bill do not control the prices which CMOs charge. The Copyright Tribunal will continue to hear disputes over reasonableness of licence fees. That was the case and will still be the case.

Clause 459 of the Bill clarifies that the new regulations will apply to any CMO who offers licences to users in Singapore. However, foreign CMOs who represent local rights owners, but offer licences to users overseas, will not be subject to the new regulations.

I also mentioned the timeline for these regulations. The provisions for regulating the CMOs will only be implemented later after a further public consultation on licence conditions next year. This will give CMOs more time to make the necessary adjustments to regulation.  

We are mindful that the CMOs might need the extra time and we are continuously engaging with them and have done so since our CMO public consultations started a few years ago. So, I can assure Mr Thomas that the scheme will be a light-touch class licensing regulatory framework. And we similarly want to encourage new entrants in this area with innovative solutions. 

Regulations, as some Members have pointed out, will provide clarity to all, but at the same time, we do not intend to make it burdensome to CMOs who operate in a responsible and accountable manner.

To achieve the right balance in our regulations, we have considered the experience of other countries and international precedents in WIPO's Good Practice Toolkit for CMOs. 

Finally, Mr Wee had some concerns that the use of the term "permitted uses" to describe exceptions may lead to confusion. 

The term simply means that the user is permitted to do an act under the law. Clause 183 explains that an act that is a permitted use is not a rights infringement. This will help to prevent misunderstandings about the use of that term.

Let me now touch on some of the suggestions raised by Members.

Ms Ng Ling Ling suggested that persons with intellectual disabilities and audio disabilities could have similar levels of permitted uses as persons with print disabilities and also that permitted uses should all be made mandatory. Mr Patrick Tay asked whether there could be a one-stop publishing house dealing with all the IP rights. Ms Yeo Wan Ling spoke about models that need to have some form of protection as well. Assoc Prof Jamus Lim spoke about permitted use for publicly-funded research, which I believe I responded to earlier in the context of fair use. Mr Raj Joshua Thomas suggested that we consider legislation that can determine the ownership of AI-generated works. And Ms He Ting Ru had a suggestion on mandating royalties.

We will study these suggestions. These are all suggestions that are not covered in this Bill but we will study them and decide at the appropriate stage whether they can be implemented or they can be implemented with modifications.

I want to tell Members of this House that our review of the copyright regime does not stop with the passing of this Bill. We will continually review, particularly given that we are dealing with an industry sector that is very fast changing and fast moving, and will take on board suggestions as they come in for our continual review.

Mr Wee had a suggestion that went beyond this framework, on whether there could be a valuation and financing framework for collateralising copyright. I will just touch on this briefly.

I recently spoke at the launch of the Singapore IP Strategy 2030 during this year's IP Week @ SG event, outlining the efforts on valuation of IP. I believe this is an opportune suggestion. Singapore will be involved with an international valuation panel to develop valuation guidelines for intangible assets and IP. The guidelines will be based on internationally accepted standards that can be then widely adopted internationally and they will help rights owners commercialise and maximise the value of their IP, including through collateralisation.

Finally, Sir, Members have brought up some points in relation to how these changes could be communicated to the relevant stakeholders.

Mr Patrick Tay had various suggestions for freelancers and the general public. Mr Raj Joshua Thomas and Mr Lim Biow Chuan urged that there must be public education on the change in the default ownership rules for certain commissioned works. And I think Members were particularly taken with the point about photography and wedding photographs, in particular. It was an example that came up with more than once. We agree and we will do so.

Mr Yip asked what the Government would be doing to build up a culture of acknowledging sources and identifying creators in our schools, given the new permitted use of freely available materials from the Internet for educational purposes which requires acknowledgment of the source as a condition. 

As I mentioned earlier, we will be reaching out to the various stakeholders to help them understand their new rights and will also be working with them to make sure that the broader public is kept informed. For example, we will work with the National Arts Council and NTUC to educate creators and performers. We will work closely with MOE to ensure that teachers and students are aware of the details of the new permitted use. For changes which affect a broad spectrum of stakeholders, like the changes in default ownership of commissioned works or the new right to be identified, we will reach out through various channels, infographics, social media and public talks, to make sure that information is disseminated.  

I would like to also take the opportunity to ask my fellow Members here to help disseminate the information as well in your respective constituencies. IPOS has put up materials on their website, explaining the changes. Members can avail themselves of online resources and bring them to the attention of members in their constituencies.

Assoc Prof Jamus Lim asked what we do with Parmesan cheese and whiskey. Assoc Prof Lim might know that this is not within the purview of this Bill. That had been covered in the previous Geographical Indications Act, which we had passed earlier and amended last year. But I would like to assure the House that it does not stop local producers from producing. You just cannot call it a name that otherwise bears a reference to a location.

When Ms He Ting Ru closed her speech, she mentioned clauses 141 and 142 on penalties, but then quickly segued into talking about the cost of foreign sports programmes being broadcast on TV. I think Ms He knows that this is also not relevant to this Bill. This is the result of exclusivity of negotiated broadcast, licences and rights, and it is not an issue that this Bill can fix.

Indeed, the point here is you cannot remove copyright. You cannot take away the copyright because, quite frankly, if you do, then the content will simply not come into Singapore. So, it is quite a different debate altogether that Ms He has raised on this issue. It is not germane to this Bill and I would not say anything beyond this.

Mr Speaker, I would like to thank all the Members who have spoken. I think all of the Members who have spoken support the Bill. I would like to reiterate and underscore the point that this Bill seeks to navigate a fine balance between public interest access, having more access and ensuring that content creators are properly remunerated and their rights are protected. This Bill represents our commitment to ensure that balance between rights owners and the users. We continue to chart a path that is both fair and reasonable to both sides of the equation. We do this in the context of the technological and the market changes that are constantly occurring. Mr Speaker, with that, I beg to move.

Source: Hansard