Last week the Ministry of Law (MinLaw) and the Intellectual Property Office of Singapore (IPOS) began consultation on a draft bill to amend the Singapore Copyright Act (the Act).
The draft bill is the latest step in a consultation process that has been underway in Singapore since 2016. A 2019 report containing the IPOS’s recommendations set out the Office’s intention to restructure and revise the language used in the Copyright Act in order to make the Act more readable and easily understandable. Trina Ha, the Director of the Legal Department at IPOS, spoke at the ADA Copyright Forum in 2019 about the reform process.
The Act currently includes a general “fair dealing” exception, but this will be “restated” as a fair use exception.
The Bill would also remove the ‘commercial availability’ fairness-factor (the requirement to consider the possibility of obtaining a work within a reasonable time at an ordinary commercial price). The removal of this factor clarifies that it will not always be necessary or appropriate for users to seek a licence before relying on the fair use exception.
MinLaw and IPOS stated in a paper released last year that the intention behind this proposed change is to “create an environment conducive to the development of creative works, and to facilitate greater investment, research and development in the copyright industries in Singapore”.
The ADA has previously advocated for the removal of the ‘commercial availability’ factor from the fairness factors set out in the research and study fair dealing exceptions contained in sections 40 and 103(c) of the Australian Copyright Act on the grounds that it could be construed as requiring users to always try to seek a licence before relying on fair dealing. The ADA understands that this factor is not intended to be included in the fairness factors applying to the proposed new quotation fair dealing exception.
The bill includes a new purpose-based exception for educational uses of freely available internet materials. The exception will allow schools and other education providers to use any online work that is “accessible without the need for payment at the time of access”. This amendment reflects the ways in which education has evolved beyond the traditional classroom model to become far more interactive, with students taking advantage of having access to a range of additional resources online including videos, blogs, wikis and other websites. The changes also reflect the fact that the vast majority of these online resources are not intended to be commercialised, and have been made available by creators with the intention that they can be accessed and used for free.
The ADA has been very supportive of a similar exception for Australian educational institutions. Australian institutions currently pay millions of dollars each year to use material that is made available online for free and for which no one ever expected to receive payment.
Text and data mining
A new text and data mining exception would provide certainty for users wanting to use copyright material for computational data analysis, including text and data mining, analytics and machine learning. While some of these activities might currently be permitted under other exceptions, IPOS noted that the enactment of an express exception would provide the level of certainty needed to encourage these technologies. Rights holders will be prevented from excluding or restricting this exception by contract.
Australian users currently have no such certainty. Text and data mining technologies play a crucial role in unlocking hidden information, and have the potential to facilitate the discovery of breakthrough research and innovation across every field, and yet these uses will in many cases infringe copyright under existing Australian copyright law. A stand-alone exception which allows the non-consumptive use of copyright material for applications like text and data mining could bring enormous societal and economic benefits, and the ADA continues to advocate for a similar exception to be introduced here in Australia.
Creators’ and performers’ rights
For copyright owners, the bill introduces changes that will grant creators default ownership rights in certain commissioned works (photographs, portraits, engravings, sound recordings and cinematograph films) as well as provisions designed to strengthen performers’ rights. In both Singapore and Australia it is currently the commissioner of those works who owns the copyright by default. Importantly, the changes do not prevent creators from assigning ownership of their copyright through contract.
The bill will also introduce a new right for creators of literary, dramatic, musical and artistic works to be identified and attributed whenever their works are used – a right to attribution that Australian creators already enjoy. Currently, creators in Singapore only have a right to prevent false attribution of authorship.
There are also important changes for the GLAM sector. Existing exceptions for libraries and archives have been redrafted to be technology-neutral, and a new exception for reproduction and communication to the public for the purpose of publicising an exhibition has been introduced. The exceptions for libraries and archives have also been extended to apply to museums and galleries. The exceptions will be protected from contractual override by rights holders.
Recognising that the consultation process has been underway since 2016, the MinLaw and IPOS intend for the Copyright Act to be passed in the third quarter of 2021, with the consultation period ending 1 April 2021.