PUBLIC CONSULTATION ON PROPOSED CHANGES TO SINGAPORE’S COPYRIGHT REGIME Prepared by the Ministry of Law (“MinLaw”) and the Intellectual Property Office of Singapore (“IPOS”) 23 August 2016 PART I: INTRODUCTION 1.1 MinLaw and IPOS are seeking views on proposed changes to Singapore’s copyright regime. The public consultation period is from 23 August 2016 to 24 October 2016. 1.2 Copyright is a form of intellectual property right which gives creators and producers of creative works the right to prevent or allow other people to use these works in certain ways for a limited period of time. It is an economic incentive for creative activity that benefits society. For a copyright regime to spur and support innovation, it must appropriately balance the interests of creators, rights owners, users, businesses and future creators to ensure (a) the provision of exclusive rights as an incentive to create and disseminate new creative works, and (b) that access to those works be broad enough for the benefit of other creators and for society. 1.3 The objective of this review is to ensure a copyright regime where rights are reasonable, clear and efficiently transacted. The proposed changes are listed in Paragraph 3.1 of Part III of this consultation paper. In drawing up the proposed changes, we have taken into consideration feedback from focus group discussions with various stakeholders and similar reviews in other jurisdictions. We invite interested persons to comment on the issues highlighted in this consultation paper, as well as on other copyright-related issues. 1.4 We will also be publicly consulting on proposals relating to the area of Collective Management Organisations in early 2017. Page 1 of 53 PART II: BACKGROUND A. Overview of Current Copyright Regime 2.1 Copyright is a form of intellectual property right which gives creators and producers of creative works the right to control specific uses of their works for a limited period of time. Once that period is over, the work becomes part of the public domain and is free to be used. Their rights during the period of protection are also limited by certain exceptions provided in the law. 2.2 In Singapore, the copyright regime is governed by the Copyright Act (Cap. 63) (“CA”). Copyright legislation is supplemented by case law - the recorded decisions of our courts. Case law has the function of clarifying or interpreting certain provisions of the CA when the need arises. 2.3 Copyright protects certain categories of works specified in the CA, listed below: a) Literary works such as books, poetry, blogs, articles, song lyrics, source codes of computer programs; b) Dramatic works such as scripts for films and theatre shows; c) Musical works such as melodies of songs; d) Artistic works such as fine art, sculpture, photography; e) Published editions of the above works; f) Sound recordings, where melodies and lyrics are performed and recorded for distribution; g) Cinematograph films, which includes video footage and moving images that appears in movies, on television, on the Internet or within computer programs like games; h) Television and radio broadcasts, cable programmes; and i) Performances such as those by live musicians 2.4 Copyright protection comes in the form of being able to prevent or allow other people to use the creative work in certain ways as specified in the CA, differing by type of creative work. In general, the types of uses of a work that creators or producers have the ability to control include the copying and publishing of their work, performing or communicating the work to the public, and adapting the work to a different language or different medium. 2.5 When a third party intends to use a work still within the duration of copyright protection, permission from the owner of the copyright must be obtained. Creators and producers are allowed to assign or license their copyright protection to other parties, and generally we refer to the people with copyright vested in them as “right-holders” or “copyright owners”, as they may or may not have been the original creators. Page 2 of 53 2.6 The CA sets out exceptions for the use of works without permission for specific users (e.g. schools, libraries and archives etc) or for specific purposes (e.g. research and reporting of current events), as well as an open-ended “fair use” exception, which is not limited to specific situations, but based on specified factors1. 2.7 Lastly, the CA also sets out what acts would be considered infringement of copyright, and what civil remedies or criminal penalties may apply. Example: John writes regularly in his personal blog. He automatically gets copyright protection over his blog entries as they are a type of literary work. This means that anyone who wants to copy his blog entries word-for-word (even if it is only a portion of the blog entry) needs to seek his permission. Other rights which he has over his blog entry include the right of adaptation, so if anyone wishes to translate his blog entry into another language and share it, they will also need to get his permission. One way that someone can copy his blog entry without having to seek his permission is if the intended use falls within an exception under the CA. For example, if a school comes across his blog entry and wishes to use it as a passage in their examinations, they can do so without his permission as the CA has an exception for any use for the purpose of examinations. B. Reasons for Review of Copyright Regime Basis of copyright regimes 2.8 A well-functioning copyright regime has to balance between providing rights to creators and producers as an incentive to create and disseminate new creative works, and providing increased access to, and use of, those works for the benefit of society at large. The latter is provided through ensuring that there are good distribution methods for creative works, and also through targeted copyright exceptions, which improve access and sometimes allow for use of creative works without the need to ask permission. This inherent balance in copyright encourages the creation and dissemination of knowledge and ultimately contributes to the larger drive to foster innovation. 2.9 Although they are commonly framed as competing interests, incentives to create do not only benefit creators and producers of creative works, and better access to works do not only benefit the users of creative works. Society as a whole benefits from having (and being able to use) more creative works if 1 Please refer to paragraphs 3.47 and 3.48 for an explanation of “fair use”. Page 3 of 53 incentives to create exist. And easier access to, and use of, creative works also benefit existing creators, in allowing them to work off and be inspired by the works of others, as well as help to cultivate the next generation of new creators and producers. Evolution of copyright regimes 2.10 How copyright regimes actually achieve this balance is something that should be reviewed due to the significant technological and market changes in the digital age. For much of copyright’s long history, copyright regimes have largely assumed that creative individuals who create new works would be aided by organisations 2 , which represented the individuals, packaged their various creations and developed the distribution channels for the works to be consumed. 2.11 However, in the last decade, new technologies and the Internet have reshaped the ways in which content is created, distributed, and accessed, greatly changing the profile of copyright creators and the behaviours of copyright users. For example, with sophisticated but easy-to- use technology, new ways of creating content have emerged, such as the proliferation of mobile phone cameras or easy-to-use apps like Apple’s GarageBand. Distribution of content has also evolved using technology which was never envisaged by copyright regimes, e.g. streaming. 2.12 The digital era has allowed amateurs and technology companies to become a growing group of creators, and at the same time, users today value on-demand access to creative works across multiple devices. With the rise of amateur creators, increasingly the users of creative works today are building on existing works to become creators themselves. Singapore’s Copyright Act 2.13 Singapore’s CA was first enacted in 1987 and was largely based on Australia’s and the United Kingdom’s copyright regimes of that period. Major additions to the CA were made in 1998, 1999 and 20043, which ensured that Singapore’s copyright regime was aligned to international norms and bilateral treaties, technology-neutral, and applied to content which was being created, distributed and consumed digitally. This public consultation is the first 2 Such organisations include, for instance, IP-rich industrial corporations in various sectors, such as IBM and Apple in the IT field, entertainment companies such as Disney, book publishers such as Penguin, record producers such as Sony, national collective management organisations organised under umbrella groups such as the International Confederation of Authors and Composers Societies (“CISAC”) (representing authors across all artistic repertoires) and the International Federation of the Phonographic Industry (“IPFI”) (representing recording companies)] and local distributors. 3 The changes were made in order to implement Singapore’s obligations under the World Trade Organisation Trade Related Aspects of Intellectual Property Agreement (“TRIPS”), the United States- Singapore Free Trade Agreement (“USSFTA”) and the World Intellectual Property Organisation’s (“WIPO”) Performances and Phonograms Treaty (“WPPT”) and the WIPO Copyright Treaty (“WCT”). Page 4 of 53 comprehensive review of the CA in a decade — much has changed since then, both online and offline.