MinLaw and IPOS consult on draft Copyright Bill to enhance clarity and accessibility of copyright regime: Allen & Gledhill

3 March 2021

This article was originally published on 19 February 2021 and covered the first part of the public consultation on the draft Copyright Bill. We have updated our article to include a reference to the second part of the public consultation which was released on 22 February 2021.

The Intellectual Property Office of Singapore (“IPOS”) and the Ministry of Law (“MinLaw”) are conducting a public consultation from 5 February 2021 to 1 April 2021 to seek feedback on the draft of a proposed Copyright Bill (“draft Bill”) which will repeal and replace the current Copyright Act (“Copyright Act”).

The ongoing public consultation seeks views on whether the draft Bill will appropriately implement recommendations previously raised for public consultation in 2016 and published in the Singapore Copyright Review Report in 2019. A second part to the public consultation has been released on 22 February 2021 (and will end on 1 April 2021) to seek comments on legislative provisions relating to the regulation of collective management organisations, which were separately raised for public consultations in 2017 and 2020. We covered this in “MinLaw and IPOS release second part of public consultation on draft Copyright Bill on collective management organisations and Copyright Tribunals”

Main features

The main features of the draft Bill and the key differences from the current Copyright Act are:

The draft Bill employs plain English to present the law in a manner that is clear, readable, and easily understood, while retaining a necessary degree of legal precision. For example, unwieldy phrases such as “edition which is stored on any medium by electronic means” have been replaced with “electronic edition”.
The draft Bill is structured thematically as far as possible and streamlined to remove unnecessary duplication. For example, the distinction between “works” and “subject-matter other than works” in the current Copyright Act will be abolished, and the term “works” will be used for both categories.
The exceptions in the draft Bill have largely been consolidated into a single Part on “Permitted Uses”. This covers exceptions relating to works and performances, and facilitates the easy location and comparison of relevant exceptions.
The draft Bill introduces new rights and exceptions, including a new right of attribution for creators and performers, a new exception for computational data analysis, a new exception covering materials placed on a statutory register, and a new purpose-based exception in relation to freely available online works for educational uses at not-for-profit educational institutions.

Key changes

A summary of some of the key changes in the draft Bill is set out below:

Granting creators default ownership of copyright in certain commissioned works: The draft Bill provides that the ownership of copyright in commissioned photographs, portraits, engravings, sound recordings and cinematograph films would be with the creator instead of the commissioning party. Creators and their commissioners may nevertheless contract to provide for the commissioner to own the copyright instead. In addition to default ownership of copyright in literary, dramatic, musical and artistic works, employers will also enjoy default ownership of rights in all other works (formerly known as “subject matter other than works”) created by employees. However, the current default ownership rules for journalist-employees will be retained.
Setting limits to the duration of copyright protection for unpublished, anonymous, and pseudonymous works: The duration of copyright protection for unpublished works will be limited under the draft Bill. Currently, an unpublished work enjoys perpetual copyright protection. The draft Bill also proposes to change the duration of copyright protection for certain types of anonymous and pseudonymous authorial works.
Attributing creators whenever their works are used: The draft Bill will introduce a new right for creators of literary, dramatic, musical, and artistic works to be identified in relation to their works, as well as for performers to be identified in relation to their performances, in a clear and reasonably prominent manner. The right, which will be personal to the author or performer (and not assignable), will not apply to specified works and performances (for example, a computer programme or a work created in the course of employment). The right will subsist for the duration of copyright or protection period of a performance (as the case may be). There will also be defences and exceptions to the right of attribution.
Introducing a general “fair use” exception: The Copyright Act currently provides for an open-ended “fair use” exception, which permits use of copyright works without permission or a licence from the copyright owner, as long as the courts deem the specific use as fair”. The Copyright Act presently sets out a list of five non-exhaustive factors which the courts should take into account when determining whether a particular use is “fair”. The five factors are (i) the purpose and character of the use, including whether the use is commercial in nature or for non-profit educational purposes; (ii) the nature of the creative work; (iii) the amount of the creative work that has been copied, or whether the part that is copied is substantial to the whole of the creative work; (iv) the effect of the use on the potential market for, or value of, the creative work; and (v) the possibility of obtaining the creative work within a reasonable time at an ordinary commercial price.

The draft Bill will restructure the current fair dealing exception into an open-ended general “fair use” exception by, among other changes, removing the “fifth factor”. All other existing specific fair dealing exceptions will be retained and restated under this broad exception as purposes for which a work or recording of a protected performance may be fairly used, subject to the “fair use” factors.

Facilitating uses of work for text and data mining: The draft Bill will create an express exception to the exclusive right of reproduction, for all works and recordings of protected performances, for uses required as part of a technical process of using computational data analysis techniques. These uses would include text and data mining, analytics, and machine learning. This exception does not allow the works to be supplied to any person, except as required for such computational data analysis purposes.
Facilitating educational uses at non-profit schools: There will be a new purpose-based exception for educational uses which will apply to any online work that is available for free at the time of access. The use of such online work or recording will be limited to reproducing, adapting, or communicating it in the course of an activity that has an educational purpose (which will be non-exhaustively defined in the draft Bill), and must be carried out in connection with a not-for-profit educational institution. The user of the online work must acknowledge the Internet source of, and give sufficient acknowledgement to, the online work or recording.
Increasing the availability of materials on official Government registers: The draft Bill will introduce an exception to permit copying and distribution of materials in public registers and public material maintained by the Government or its statutory boards for inspection and information.
Protecting certain exceptions from being restricted by contracts: The draft Bill will provide that the following exceptions cannot be excluded or restricted by contract in any circumstances: (i) galleries, libraries, archives, and museums; (ii) use of computer programs; (iii) computational data analysis (i.e. text and data mining) and (iv) judicial proceedings or professional advice, in addition to the present list of exceptions which may not be restricted by contract relating to the backing-up or decompiling or observing, studying and testing of a computer program.
Streaming of audio-visual content from unauthorised sources on set-top boxes: The draft Bill will introduce civil and criminal liabilities on persons who engage in commercial dealings with set-top boxes that stream audio-visual content from flagrantly infringing online locations. The draft Bill also introduces a presumption that an online location is a flagrantly infringing online location in certain situations.
New sound recording rights: The draft Bill will introduce a right of communication to the public and a right to be paid equitable remuneration when the sounds embodied in these recordings are caused to be heard in public for the owners of copyright in sound recordings. There will also be new procedures for legal action in the event of failure to pay such remuneration as well as new exceptions for the communication of sound recordings to the public under certain circumstances.

The other proposals under the draft Bill relate to amendments to the criminal provisions in the copyright regime, new exceptions for galleries, libraries, archives and museums, adjusting existing provisions for print-disabled users and changes to the existing performers’ rights regime.

Commencement of the new Copyright Act

The new Copyright Act is expected to be passed in the third quarter of 2021. The whole Act, with the exception of the provisions on collective management organisations, is expected to commence one month thereafter. The latter will commence on a later date that will be announced subsequently, following further consultations on the regulations for the proposed class licensing scheme.

The existing copyright subsidiary legislation will be amended to update all cross-references to their equivalent provisions in the draft Bill. The copyright subsidiary legislation will take effect at the same time as the new Copyright Act.

Reference materials

The following materials can be found on the IPOS website www.ipos.gov.sg and MinLaw website www.mlaw.gov.sg: