Insight & Analysis Lecture Series

Insight & Analysis Lecture Series: Secondary Liability for Online Copyright Infringement

http://wp.contentpromotion.net/ and the Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA) have partnered on a thought leadership initiative which aims at exploring and discussing current and emerging political, legal, and business developments in the areas of creativity, innovation, and commerce. The initiative consists on a series of lectures featuring acclaimed international speakers and compelling topics the Insight & Analysis Lecture Series.

The lectures will take place at Singapore Management University. Guest speakers will have an allocated time for their presentations, followed by engagement with a distinguished commentator and a Q&A session with audience attendees. Each lecture will be followed by a reception, which will provide further opportunities for informal networking between the speakers and attendees.

THIRD LECTURE – SECONDARY LIABILITY FOR ONLINE COPYRIGHT INFRINGEMENT: RECENT DEVELOPMENTS

SYNOPSIS

Secondary liability for copyright infringement has been a hotly contested issue in a number of international jurisdictions. In the United States (U.S.), secondary copyright liability has traditionally been determined through case law. Whereas earlier cases involved responsibility for the performances of musical compositions in dance halls, or the sale of counterfeit recordings in retail outlets, more recent cases have involved internet service providers’ (ISPs) liability for the unauthorized distribution and communication of copyrighted works. In 1998, the Digital Millennium Copyright Act enacted specific ‘safe harbor provisions’ in order to limit ISPs’ liability as long as they abide by certain statutory requirements. Yet in December 2015, a U.S. District Court held that Cox Communications, one of the country’s biggest ISPs, could not avail itself of a safe harbor defense. A federal jury thereafter held Cox liable for willful contributory copyright infringement. 

What are the practical implications of this decision for ISPs? What facts were central to the decision, and what might the outcome have been if the case had been litigated here in Singapore? Fordham University Law Professor Hugh Hansen, Founder of the Fordham Intellectual Property Law & Policy Conference and Director of the Fordham IP Institute will discuss these issues during this lecture. Follow-up remarks will be provided by Lam Chung Nian, Head of the Intellectual Property, Technology & Media, Telecommunications and Data Protections Practices at Wong Partnership.   

SPEAKER

Hugh Hansen has taught intellectual property law for many years.  His focus is on a legal realist understanding of how courts, agencies, legislatures and the private sector interact with IP law and each other. In the same vein, he founded and directs the Fordham Intellectual Property Law & Policy Conference, and the Fordham IP Institute.  The Director General of the WIPO called the Fordham IP Conference ‘the Davos of the IP world.’ Professor Hansen has written one IP book and edited many others. He speaks frequently in the U.S. and abroad. The U.S. State Department sponsored a speaking tour for Professor Hansen in Japan, and Melbourne University did the same in Australia. In intellectual property law matters, Professor Hansen has been lead counsel, a consultant and expert witness in the U.S., UK, German and Polish courts. Managing Intellectual Property Magazine named Professor Hansen one of the 50 most influential people in IP in the world three times.

 

COMMENTATOR

Lam Chung Nian heads the Intellectual Property (“IP”), Technology & Media, Telecommunications and Data Protection Practices at WongPartnership LLP. He is a tutor for IP law in the Preparatory Course Leading to Part B of the Singapore Bar Examinations, an Associate Faculty at UniSIM and lecturer at the Graduate Certificate in IP Law programme, a course jointly organised by the IP Academy (Singapore) and the Faculty of Law, NUS. Chung Nian is a Fellow of the CIArb and is appointed to the WIPO Panel of Film and Media Mediators, Arbitrators and Experts, as well as the panel of mediators for the IPOS-WIPO initiative for Mediation for Proceedings Instituted in the IPOS. He is the Vice Chair of the IBA Communications Law Committee, Hon Secretary of the Asian Patent Attorney Association (Singapore Chapter), member of the International Trademark Association, and sits on the IP Committee of the Law Society of Singapore.

 

MODERATOR

Frank Rittman is Founding Director of the Centre for Content Promotion. An independent consultant operating primarily in the fields of media, entertainment, and cross-market development, Frank most recently served as the Senior Vice President, Deputy Managing Director and Asia-Pacific Regional Policy Officer for the Motion Picture Association, a trade association representing six international producers and distributors of filmed entertainment.  Prior to that Frank was the Vice President of International Affairs for the National Music Publishers’ Association and The Harry Fox Agency, Inc.  A native New Yorker, Frank began his career as the Director of Contracts & Copyrights for the Macmillan Publishing Company and his professional appointments include serving as a former Chairman of the New York County Lawyers’ Association Entertainment Law Committee, as well as on the Board of Directors of CASBAA, the non-profit association representing the pay-TV interests in the Asia Pacific region.

 

WELCOME ADDRESS

Irene Calboli is Lee Kong Chian Fellow, Visiting Professor, and Deputy Director of the Applied Research Centre for Intellectual Assets and the Law in Asia (ARCIALA), School of Law, Singapore Management University. She is also a Professor of Law at Texas A&M University School of Law. Before joining SMU, Irene held a visiting professorship at the Faculty of Law of the National University of Singapore from 2012 to 2015. She is a prolific author and has published several books, articles, and reports on a varieties of areas of intellectual property law. Her current scholarship focuses on the intersection between intellectual property and international trade. Irene is an elected member of the American Law Institute and an associate member of the Singapore Academy of Law. She is currently serving, inter alia, as a member of the Executive Committee of the Intellectual Property Section of the Association of American Law Schools and a member of the Legislation and Regulation Committee of the International Trademark Association.

 

The next Insight & Analysis Lecture will be delivered on 17 February 2017 by Mike Weatherley, Executive Vice President and Chief Finance Officer, Motion Picture Licensing Corporation.

 

Participants who wish to claim CPD Points are reminded that they must comply strictly with the Attendance Policy set out in the CPD Guidelines. This includes signing in on arrival and signing out at the conclusion of the activity in the manner required by the organiser, and not being absent from the entire activity for more than 15 minutes. Participants who do not comply with the Attendance Policy will not be able to obtain CPD Points for attending the activity. Please refer to www.sileCPDcentre.sg for more information.

Please note that your photograph, audio-video or other recordings may be taken during the event for use by Singapore Management University in social media, promotional collaterals, event publicity, and other related purposes.

 

Admission is free, but seats may be limited. Attendance is by registration only.
Please register by 2 Jan 2017.

10 January 2017 (Tuesday)

4.00pm to 5.45pm
(Registration starts from 3.30pm onwards)

SMU Administration Building
Function Room 4.1, Level 4
81 Victoria Street
Singapore 188065

1.5 points (provided SILE’s CPD Attendance Policy is complied with)

Intellectual Property

General

Click HERE for map

3.30pm Registration

4.00pm Welcome Address by
Professor Calboli

4.05pm Lecture by
Professor Hansen

5.00pm Comments by
Mr. Lam 

5.30pm Discussion Moderated by Mr. Rittman

5.45pm Reception & End of Event

 

 

CCP Comments on Singapore Copyright Public Consultation Document

October 21, 2016

 

Intellectual Property Policy Division

Ministry of Law

100 High Street

#08-02 The Treasury

Singapore 179434

 

Intellectual Property Office of Singapore

51 Bras Basah Road

#01-01 Manulife Centre

Singapore 189554

 

Re: Public Consultation on Proposed Changes to Singapore’s Copyright Regime

 

To Whom It May Concern:

Thank you for the opportunity to comment in response to the above-referenced document released on 23 August 2016.

The Centre for Content Promotion (CCP), previously known as the Centre for Content Protection, was established in 2007 as a consortium of interests committed to shaping Asia Pacific’s digital future through innovative technologies providing secure means for consumers to enjoy anywhere, anytime, any device access to their favorite music, movies, and television programs. Since then the CCP and its represented constituents have promoted the continued development of new businesses, service modes, and consumerism through research, forums, conferences and workshops undertaken throughout the region. However, a cornerstone for all of the CCP’s foregoing initiatives has been the need, and the means, to promote legitimate business models by protecting content against digital piracy and other forms of infringement. As such, the CCP has a professed interest in the ongoing consultation and the subject matter now under consideration.

Not all of the specific issues mooted in the Singapore Government’s consultation paper are specifically relevant to the CCP’s foregoing mandate and the comments reflected herein are focused accordingly. However, before addressing the consultation paper’s specifically enumerated proposals, the CCP posits some general comments regarding copyright protection and legislative reform.

In its broadest terms, copyright is a right provided by law that grants creators of originals work the exclusive rights for the commercial use and distribution of those works for a limited term, thus providing an incentive for the creation of such works and contributing to the development of ancillary supporting businesses and services. Creative industries provide significant contributions to national economies. In addition, copyright law has a utilitarian aspect: incentives to create not only benefits creators, but also society as a whole, which benefits from more creative works. More literature, more films, more art, and more music undoubtedly benefits and advances modern society and copyright law serves as the backbone for the creation of artistic works.

At the same time, copyright law recognizes the sometimes competing interests of the general public in accessing and utilizing protected works, and in certain limited instances accords a greater importance to such access and utilization through calculated exceptions to the creators’ exclusive and unencumbered rights. Most copyright laws therefore provide for permitted exceptions where a broader public interest, e.g. scholarly research, is deemed to exceed the creator’s private interest.

However, because of the potentially significant impact such exceptions have on the foregoing incentives to create, limitations on copyright protection should in all instances be based on clear and objective evidence that they are both justifiable and limited in scope. The coda for such exceptions is clearly stated in Article 9(2) of the Berne Convention for the Protection of Literary and Artistic Works, which mandates that limitations to the exclusive reproduction right, for example, should only be allowed in ‘certain cases, provided that such reproduction does not conflict with a normal exploitation of a work and does not unjustifiably prejudice the legitimate interests of the author.’ The three-step test, which dates back to 1886, has since been modified and incorporated into other international instruments including the Agreement on Trade Related Aspects of Intellectual Property Rights, the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, and the EU Copyright Directive among others.

The internationally accepted emphasis in permissible exceptions thus favors creators’ rights to realize economic benefits from their works rather than users’ rights to freely access and utilize such works. This so-called balance of interests need only be appropriate, rather than precisely equivalent. Exceptions and limitation should therefore result from an objective, evidential need based upon empirical criteria that something needs to be done, rather than upon fanciful conjecture that something could or ought to be done merely for the sake of doing something.

A general observation is that the consultation paper does not sufficiently identify such evidence for the sweeping degree of proposed limitation exceptions and instead relies inordinately on speculation and hypothesis as the basis for a number of sweeping proposals that unduly impinge upon creators’ rights.   The same observation applies in respect of certain proposals contemplating new procedural requirements for normative protection.   In many instances the proposed amendments seem to be theoretical solutions in search of practical problems where none have been shown to exist.

The CCP now offers the following specific comments to certain of the consultation paper’s enumerated proposals.

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Questions 1(a) through 1(f)

Bearing in mind the observation referenced in the consultation paper that Singapore’s existing international obligations prescribe that neither registration, nor any other formality, can be considered a necessary prerequisite before copyright protection is conferred on works, the CCP nonetheless acknowledges the reasoning put forward by MinLaw and IPOS in support of the question 1 proposals that a voluntary registration system, supported by certain inducements including evidentiary presumptions, could perhaps be beneficial to certain rights owners in Singapore.

The CCP is aware of instances wherein defendants in Singapore have in the past placed the subsistence and/or ownership of copyright in underlying works ‘at issue’ as a procedural defense during infringement proceedings. Although our understanding is that costs incurred in establishing or refuting subsistence and ownership are typically recoverable by the prevailing party, the additional time and expense required to resolve such issues could perhaps be minimized through a locally-based registration system that might deter some litigants from raising spurious claims or defenses.

Although multinational corporate entities may already be accustomed to registering their works overseas as a means to address this concern (and thus may not avail themselves of any further registration opportunities that might be afforded locally), local rights owners may not be as familiar or experienced with such international practices, and/or feel reluctance towards involving utilizing an overseas system.   A locally-based registration regime may thus provide some perceived advantages, including expediency and geographic proximity, to certain rights owners.

The CCP opines that, beyond the question of subsistence and ownership, a deposit registry could be relevant to establishing substantial similarity in any prospective infringement proceedings.   However, the consultation paper insufficiently explains why the costs to users of a deposit registry should be significantly greater (i.e. more than twice the cost) than that of a mere title registry. While it is plausible that the reason may be a greater expense involved in maintaining a deposit registry, such incremental costs should perhaps be subsidized through the government’s general coffers as a public service rather than being simply passed along as an additional cost to users.

The CCP further agrees that a voluntary and reasonably-priced registry may be more likely to be utilized if certain evidentiary presumptions are accorded to a registrant. By way of example and as noted in the consultation paper, a registration certificate in the United States establishes a prima facie presumption of all facts stated in the registration document (including for example the date and place of first publication, where relevant) and is indeed a significant inducement for registering copyrighted works.

A thoughtful study released in November 2015 by the USA-based Center for the Protection of Intellectual Property noted that “While registration has been voluntary since the passage of the Copyright Act of 1976, authors have important incentives to register their works.[1] Doing so also provides public benefits, such as reducing transaction costs, limiting the risks of unintended infringements, facilitating commercial transactions, providing constructive notices to third parties of the facts recorded documents, and aiding transferees in perfecting claims where the underlying works have been registered. As a result of these benefits, and despite the voluntary nature of registration, the United States attracts more registrations annually than all major countries with public registries combined.”[2]

At the same time, however, in order to minimize the possibility of false or spurious claims of ownership or creation resulting from a ‘new’ (and possibly misunderstood by some) registration mechanism it may be worthwhile to incorporate certain dis-incentives into such a mechanism, such as requiring registrations to be made in the form of a statutory declaration subject to appropriate penalties for providing knowingly false information.   Furthermore, notwithstanding the foregoing observations in support of the proposed mechanism the task and complexity of establishing and maintaining a functional registration system should not be underestimated. Such an undertaking will invariably require a significant degree of resources likely beyond whatever fees might be generated by the registry’s users (i.e. and that will need to be subsidized from the government’s general coffers).

At the end of the day, a proper cost-benefit analysis should be undertaken by the authorities before any firm decision is made or implemented.

Questions 2(a) through 2(d)

The consultation paper provides no quantifiable evidence or empirical arguments in support of changing the identified, existing provisions of the Copyright Act as a justification to shift the fundamental balance of interests between creators, on the one hand, and employers/commissioners on the other. However, by way of nuance and international comparison the CCP notes that in the United States, for example, the limited and specifically enumerated work-for-hire provisions of U.S. law are supported by the requirement of a written agreement between parties, which has resulted in customary, ordinary business practices throughout the creative industries in the United States that support this legal requirement. In the case of ‘commissioned’ works therefore, a requirement in Singapore to reduce such arrangements to writing could be an appropriate means to address the consultation paper’s concern towards creators’ unknowingly waiving otherwise protected rights, and would also conform more closely to the ‘employment’ and ‘journalist-employee’ situation(s) referenced in the consultation paper.

Questions 3(a) through 3(c)

The CCP agrees as a matter of policy and principle that the economic rights accorded to creators and owners of original works should be finite rather than perpetual. The CCP further agrees that works whose terms of protection are measured by the lifetime(s) of their creator(s) should be consistent without regard to whether or not such works were published during their lifetime(s). Between the two alternatives presented in question3(c) for the duration of sound recordings, cinematograph films, and works with an unknown creator, the CCP favors a term of protection of 70 years after first publication whenever such works are published within 50 years of their creation as the most reasonable and predictable. The conflation of a shorter, creation-based term of protection on categories of works that are presently based on their date(s) of publication could prove unwieldy, and in fact result in a shorter period of protection for such works than would otherwise be accorded under the foregoing scenario.

Questions 4(a) through 4(c)

Here again, the consultation paper provides no quantifiable or empirical evidence of any existing problem in Singapore resulting from current legislation or the lack of an attribution right. The CCP notes that, where such a right of attribution has not been legislated within the copyright laws of other jurisdictions (most notably, the United States, which in some instances provides equivalent protections under federal competition law), a practice of attributing or crediting individual contributions to creative works has nonetheless evolved from collective bargaining negotiations that are by now been reflected in common entertainment industry practices supported by customary contractual provisions. While the hypothetical example cited in the consultation paper appears to represent a reasonable unfairness, such a concern could ostensibly be addressed simply by means of a private written agreement executed between the parties. Imposing a new legislative requirement and the related expense for implementing it on wider and more complex industry sectors (such as the music, television, and film industries) going beyond existing customary entertainment practices could instead prove to be unpredictable, unwieldy and cumbersome.

Questions 5(a) and 5(b)

The CCP itself is neither a creator nor a publisher/producer and thus has not directly experienced any problems of the sort described. However, we note there seems to be an abundance of existing information already available to creators from private, third-party sources without requiring the government’s further involvement. Also, the mere knowledge of information may not in and of itself serve to balance existing leverage in contractual negotiations. In other words, knowing one’s rights may not, as a practical matter, guarantee that such defined or explained rights will in fact be accorded in all instances by the contracting parties.

The European Commission has acknowledged that there is sometimes an unequal balance of leverage in the bargaining and contractual relations between authors and publishers of creative works, for example, and certain studies have examined this issue. The EC’s proposals for a new directive on copyright provide some mechanisms to address this imbalance. EU law may, as a result, soon oblige those who have acquired rights from authors (with the exception of performing rights organizations) to report to authors on a regular basis revenues generated by the exploitation of a work and the remuneration due as a result, as well as to detail various modes of exploitation resulting in such revenues. On the basis of such information the EC is also proposing that a ‘better seller’ clause be inserted in such contracts which would allow authors to claim additional remuneration in the event the originally agreed contractual remuneration is disproportionately low compared to the revenues and benefits generated by the exploitation of the work(s).

Questions 6 (a) and 6(b)

The CCP acknowledges the policy arguments in favor of preventing contractual overrides against certain limited exceptions to economic rights provided under the Copyright Act (namely those provided in sections 39, 39A and 39B), but does not favor their further extension to the categories of activity contemplated in paragraph 3.44 or Annex A of the consultation paper.

Here again, we are unaware of any empirical evidence that users of copyrighted works in Singapore have encountered any particular difficulties when relying on the statutory exceptions due to restrictions or limitations imposed by contracts. Hong Kong’s Commercial and Economic Development Bureau observed in its recent evaluation of this very issue that “the scepticism that copyright owners may relentlessly exploit the contract route to unfairly erode the intended benefits of copyright exceptions appears more theoretical than real.”[3]

Furthermore, the UK approach referenced in the consultation paper has been met with controversy since its introduction and arguably has not sufficiently matured to such a degree as to provide useful guidance for Singapore. The subject is indeed complex and the wide extent of proposed restrictions contemplated in the consultation paper (particularly in Annex A) seems overly broad and simplistic.

The CCP therefore withholds support at this juncture for any further extension of contractual restrictions in Singapore beyond those already provided under the Copyright Act.

Questions 7(a) and 7(b)

It is important to note at the outset that fair use is frequently misconceived and mischaracterized as a so-called “right to use” copyrighted works without permission, rather than what is more accurately intended as a defense against what would otherwise be considered an infringing use of copyrighted works. As such, fair use should in all instances be narrowly construed in favor of creators’ rights (rather than broadly applied in favor of users).   For this reason, and particularly given the continued evolution of online distribution of creative works, the fifth factor seems as a practical matter to now favor a predisposition against a fair use defense, rather than supporting it. Because the CCP generally favors market-based decisions over those imposed by legislation or the courts, we opine that the retention of the fifth factor more properly balances the purported fair use defense in favor of rights owners.

The CCP notes that, unlike in the United States, there has been relatively little case law in Singapore concerning fair use to help shape the public’s understanding of the concept.   Because the fair dealing provisions set forth in section 35 have not been tested by the courts in any significant manner since their enactment, it seems appropriate to now eliminate the fair use scheme entirely, in lieu of the more specifically detailed and enumerated fair dealing exceptions already contained in the Copyright Act. The CCP thus supports the outright elimination of section 35 as the most viable means to redress any perceived imbalance of interests. However, if section 35 is to be retained, the CCP likewise favors the retention of the fifth factor.

Questions 8(a) through 8(c)

The CCP favors the proposed ‘US system’ as the most reasonable and least intrusive of the three presented alternatives for works whose ownership remains truly unknown following ordinary due diligence undertaken by prospective users of such works.

The CCP does not agree, however, that the benefit of such a proposed mechanism, if enacted, should be extended to so-called ‘unreachable’ or unresponsive copyright owners. Although most copyright owners seek to commercialize their exclusive rights whenever possible, governments should not impose any corresponding obligation to do so in every instance by enacting what could amount to a compulsory or statutory license allowing permissive use in every instance.

Question 9

While agreeing that technologies based on the electronic analysis of large amounts of works are still in a state of relative infancy, the CCP notes that the application of so-called text and data mining exceptions to the reproduction right has proven to be extremely controversial in certain other jurisdictions and thus urges that extreme caution be exercised in this regard. The proposal put forward by Singapore explicitly contemplating unfettered commercial exploitation of such excepted analyses is, as far as we are aware, unprecedented elsewhere in the world and seems to unfairly impinge upon the legitimate expectations of authors and creators of text and data. The United Kingdom and the European Union, by way of illustration, require that such excepted analyses must in all instances be undertaken merely for the purpose of non-commercial research, only, rather than permitting commercial exploitation.

The consultation paper provides no objective reasoning beyond mere conjecture in support of the unique recommendation that such an analysis, if undertaken in Singapore, could or should be commercialized without regard to the legitimate expectations of the owners or creators of the underlying text or data. The consultation paper in fact recognizes that text and data mining in Singapore has yet to develop to an advanced state as compared to other countries, yet provides no justification for its proposal to leap-frog ahead of such jurisdictions with respect to commercialization.   While generally unsupportive of the proposal, the CCP therefore recommends that such an exception, if enacted, be explicitly limited strictly to non-commercial activities.

Questions 10(a) through 10(d)

We note at the outset that this section of the consultation paper seems to unfairly characterize the present state of affairs in Singapore, and that the contemplated proposals seek to address perceived problems that do not, as far as we are understand, exist. The present extent of permissible copyright exceptions in Singapore for educational use go well beyond those permitted in a number of other jurisdictions and are thus already quite lenient by international standards.

Amendments to Singapore’s Copyright Act in 2004, ostensibly undertaken for the purpose of implementing Singapore’s obligations under its Free Trade Agreement (FTA) with the United States, broadened previously existing exceptions beyond those required in the FTA by expanding the definition(s) of ‘educational institutions’ and ‘reasonable portions’ of works in electronic formats that can be copied. Another exception enacted at that time, though not discussed in the consultation paper, extended certain permissible activities beyond those accorded to students to the educational institutions themselves.

The contemplated proposals now seek to expand the realm of permissible exceptions even further and would seem to detrimentally impact market-based solutions developed in Singapore since the implementation of the FTA that already address the perceived concerns. More specifically, the Copyright Licensing and Administration Society of Singapore Limited (CLASS) licensing scheme offered to both for-profit and not-for-profit educational institutions including public and private kindergartens, schools, community colleges and universities, already allows students and staff to copy and communicate reasonable portions of text and images for educational purposes from any source. The scheme in fact specifically addresses the consultation paper’s so-called ‘grey area’ concerns when more than 5% but less than 10% of a work has been copied by non-profit educational institutions. Allowing the permissible threshold for copying by or on behalf of such non-profit institutions of a work would thus threaten the CLASS licensing scheme’s very existence by rendering it legally unnecessary and thus impacting significantly and unfairly upon authors’ and creators’ rights. The consultation paper provides insufficient justification for such a sweeping proposal. In simple parlance and based on general observations, there seems to be nothing broken here that requires fixing. The CCP thus withholds its support for the contemplated proposals.

Questions 11(a) and 11(b)

The CCP has no views/comments at this juncture concerning the mooted proposals beyond urging caution to ensure that any purported simplification of the existing exceptions (by redrafting them) does not unintentionally change the fundamental substance of the exceptions themselves

For example, the proposed amendments to the EU Copyright Directive suggest that cultural heritage institutions could be permitted to make copies of works or other subject matter that are part of their collection for the sole purpose of the preservation of such works or other subject matter, and only to the extent necessary for such preservation.

Question 12

The CCP has no views/comments at this juncture concerning the mooted proposals beyond urging caution to ensure that any such exception, if enacted for the limited and intended purpose set forth in the consultation paper, does not unintentionally prejudice the legitimate interests of other creators and owners of copyrighted works.

Questions 13(a) through 13(c)

Although the CCP has no objection to the proposed change of terminology mooted in question 13(a) of the consultation paper, we do not agree that the underlying rationale for the proposed removal of an equitable remuneration right for rights owners whose works are converted into accessible formats (specifically that such conversions are negligible and undertaken for a social cause) provides a sufficient justification for its removal. An equitable right of remuneration provides rights owners with some modicum of recompense in return for the diminution of their exclusive rights and should therefore be retained as a matter of fairness and principle. The removal of such a remuneration right could also have unintended, presently unknown consequences if applied in the future to other categories of works for other ‘social causes’. Similarly, the proposed amendment of prescribed forms of record keeping could unintentionally and/or unfairly impact detrimentally upon the proper implementation of such remuneration schemes.

Questions 14(a) and 14(b)

The CCP has no views/comments at this juncture concerning IPOS’ current practices described in the consultation paper or the proposed exception.

Question 15

The CCP has no views/comments at this juncture concerning the mooted proposal in respect of the proposed exception.

Questions 16(a) through 16(c)

The CCP notes at the outset that the consultation paper’s cursory explanation of the statutory guidelines for allowing circumventions of TPMs is rather simplistic and insufficiently details the explicit criteria for allowing such exceptions. Rather than a mere requirement that the TPMS must be considered to adversely impair legitimate non-infringing uses as described in paragraph 3.100 of the consultation paper, the more detailed criteria for allowing such exceptions may be traced back to article 16.4(7)(f)(iii) of Singapore’s Free Trade Agreement with the United States which in pertinent part permits TPM circumvention exceptions “…when an adverse or likely adverse impact of such non-infringing uses with respect to particular classes of works is clearly demonstrated in a legislative or administrative proceeding, provided that any exception adopted in reliance on this clause shall have effect for a period of not more than four years from the date of enactment of such proceeding.”

This means that the existing Excluded Works Order (EWO) exceptions, such as those set forth in Part I of Annex B of the consultation paper should in fact be temporal rather than permanent. The consultation paper should not therefore presume, as it seems to, that the existing EWO exceptions should necessarily be maintained. The CCP opines that no exception to the prohibition of access controls should be permitted unless proponents of those exceptions clearly demonstrate: (1) specific adverse impact on specific non-infringing uses which are occurring or likely to occur; (2) that the adverse impacts are substantial and not mere inconveniences; and (3) that the impacts are caused by the legal prohibitions against circumvention and not by other factors.   These standards should apply to both newly proposed exceptions as well as previously granted exceptions. In other words, there should be no presumption that any of the exemptions recognized in the current EWO should continue beyond the stated expiration date of that instrument. The credible demonstration outlined above must be required with respect to any proposed exemption.

In addition, after considering the responses to this public consultation exercise IPOS and MinLaw should provide another reasonable opportunity for the public to comment on any exemptions to be considered for inclusion in a successor instrument to the current EWO, as well as on the evidence submitted in support of such proposed exemptions. This opportunity should be provided without regard to whether the proposed exemptions are similar to those currently recognized. Without such an opportunity for public comment, IPOS and MinLaw will be deprived of complete information upon which to base its determination of whether the required credible demonstration has been made.

The CCP recalls that that the existing Rule 4(d) exemption applicable to the use of cinematograph films[4] for educational use in the classroom was retained in 2012 on IPOS’ assertion that “a number of tertiary educational institutions utilize the exclusion in courses that involve a substantial number of students. The removal of the exclusion would adversely impact their ability to conduct the relevant courses.”   This rationale ostensibly resulted from a full and proper application of the relevant criteria, yet no further information concerning the situation today is reflected in the consultation paper. However, the Rule 4(e) exemption applicable to any cinematographic film where circumvention of a technological measure that has been applied to the cinematographic films is carried out by any person for the purpose of using a short portion of that film in a documentary for the purposes of criticism or review or reporting of the news was enacted in 2012 purportedly on IPOS’ mere assertion “that this exclusion would facilitate documentary filmmakers’ access to copyright works and strengthen the domestic production sector” which seems both superficial and statutorily insufficient. The CCP therefore queries the appropriateness for retaining either exclusion in 2016.

The CCP likewise queries the whether the newly proposed Rule 4(d) exclusions in Part II of Annex B of the consultation paper to include pre-tertiary education, as well as massive open online courses, meets the statutory threshold set forth above. The same comment applies mutatis mutandis to proposed creation of a new exception in the EWO to cover circumvention by libraries and archives of materials that are presently in their collection, or which are to be included in their collection, for the purpose of preservation. No evidence in support of either proposed rule (or indeed for proposed 4(b) and 4(f) exceptions) has been presented in consultation paper. Absent the presentation of such evidence, the CCP respectfully withholds its support for the mooted proposals.

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Beyond the specific questions already presented, the consultation paper also invites comments on any relevant issues that may not have been highlighted. In this regard the CCP opines that other measures worthy of consideration include are those that serve to enhance and strengthen the levels of protection for creative works rather than lowering and weakening them through further exceptions and limitations to copyright owners’ exclusive rights.

Further to this observation the CCP therefore commends the Government of Singapore for the successful enactment and implementation of the Copyright (Amendment) Act 2014, providing a legal mechanism to restrict access in Singapore to flagrantly infringing online locations. Singapore is by no means alone in this regard, with more than 30 countries around the world now providing some form of administrative or civil means to restrict access to rogue/infringing sites that are regularly implemented (without any apparent harm to the internet!). Although we understand that certain industry observers have identified the need for perhaps some additional fine-tuning to those amendments, the CCP highlights them as an example of welcome reform that supports the creation and legal distribution of copyrighted works.

We believe other copyright industry observers will provide better detailed recommendations specific to their specific areas of activity and the CCP will not, at this time, undertake an exhaustive review and commentary of the entire Copyright Act itself. However, two issues worthy of brief mention within the context of our comments include a provision for facilitating pre-action discovery, and the need to prohibit the camcording of cinematographic films.

The High Court’s decision in the 2008 Odex litigation[5] held that an agent of a copyright owner could not apply in the agent’s name for pre-action discovery in order to identify infringers because neither the Copyright Act nor its regulations allow for it. However, because agent’s are commonly utilized in the context of copyright infringers, MinLaw and IPOS could rectify the detrimental impact of the Odex decision through the enactment of a new provision in the Copyright Act allowing a copyright owner or exclusive licensee to authorize any person to make an application in court for an order against a network service provider for information relating to the identity of a user of the network service provider’s primary network accused of having infringed the copyright through their primary networks.

A number of Asian and global jurisdictions have by now specifically outlawed the unauthorized camcording of a feature film. Typically, unauthorized camcords are reproduced and distributed via the Internet and through the sale of unlicensed optical media. Because most camcords are made available to consumers within days of their theatrical release either for free or at a fraction of box office prices, creators’ revenues and works suffer inordinately from such activity. Specific criminal provisions against camcording, whether incorporated within a jurisdiction’s copyright laws, or by means of specific ‘stand-alone’ legislation, have therefore proven useful where enacted. The CCP notes that Article 18.77.4 of the Trans Pacific Partnership agreement, to which Singapore is a signatory, will (when implemented) require that Singapore enact criminal provisions prohibiting such activity in certain circumstances.[6] Whether by means of amendments to Singapore’s Copyright Act or independent subsidiary legislation, the CCP cites the need to prohibit camcording in Singapore as a further example of helpful legislative reform that would further protect creative works and confirm the country’s commitment to such protection.

The CCP thanks MinLaw and IPOS once again for the opportunity to have provided these comments and we look forward to our continued participation in the legislative process.

 

Sincerely,

Frank S. Rittman

Founding Director and Counsel

 

[1] See Sandra Asters, Devlin Hartline, & Mark Schultz, Copyright Principles and Priorities to Foster a Creative Digital Marketplace (Center for the Protection of Intellectual Property, 2015)

[2] See Dothan Liar, Nathaniel Pattison, & K. Ross Powell, Copyright Registrations: Who, What, When, Where, and Why, 92 Tex. L. Review (2014)

[3] See LC Paper No. CB (4) 1182/14-15(01), “The Administration’s Response to Issues Raised at the Meetings of 20 January and 7 May 2015” (2015).

[4] Although the consultation paper references ‘audio-visual works’, the CCP presumes the more correct reference is in fact to cinematograph films, as referenced in both the Copyright Act and the Copyright (Excluded Works) Order 2012.

[5] Odex Pte Ltd v Pacific Internet Ltd [2008] 3 SLR 18; [2008] SGHC 35

[6] Specifically, that provision states as follows: Recognizing the need to address the unauthorized copying of a cinematographic work from a performance in a movie theatre that causes significant harm to a right holder in the market for that work, and recognizing the need to deter such harm, each Party will adopt or maintain certain measures, which shall at a minimum include, but not be limited to, appropriate criminal procedures and penalties.

alex-oh

FAIR USE AND DIGITAL TECHNOLOGY: A MUSICIAN’S PERSPECTIVE

By Alex Oh, posted on 2 December 2016

As a musician, digital technology can be both a boon and a bane. On the one hand, it helps me create my work and gives me a bigger platform for its exposure, but on the other hand it also facilitates its infringement. It’s bad enough when digital technology provides the means for people to take my music or offer it to others without my permission or knowledge. That’s outright theft as I see it. But when digital technology is combined with excessive fair use exceptions under copyright law, the taking becomes legitimized as a matter of policy.   That’s economically unfeasible for creators, and governments around the world need to remember this when they contemplate rights reform if they value our contributions to society and its store of wealth.

I’m both a composer and a recording artist. I’m lucky enough to make music for movies, in my case usually involving full orchestras as part of the process, and I’ve had the good fortune to score 18 feature films produced in Singapore, Australia, Taiwan, and the United States. It’s a labor of love, and one that’s intensely satisfying. When I was first starting out, it was considerably harder and more expensive to produce a soundtrack. Analog technology was limiting, and allowed me to do only so much on my own. I had to compose and demo my music one instrument at a time, and in real time. I had to involve other people in the trial and error that led up to the recording session where it all came together. That slowed things down and increased my costs.

Nowadays though, there’s almost as much technology and instrumentation available to me in my computer as there used to be in the studio. This allows me to compose and experiment with a variety of sounds and instrumentation all on my own before involving anyone else. I can get things pretty much just the way I want them before calling in the orchestra. Digital technology facilitates the process and enables me to create more efficiently and cost-effectively. That’s important because at the end of the day the music business is just that: a business. And as a businessman, I’m happy whenever my revenues exceed my costs.

Digital technology also helps me to promote and expose my music to a wider audience than just the movie-goers in the cinema. Through the wonders of the internet I can, and do, make my music available to the public whenever and wherever I want. It helps me to promote myself and my creativity in ways that I never imagined, and this is true for most musicians. We crave the exposure because we want as many people as possible to legally enjoy the music we create. Legitimate consumption is the essence of how we (are supposed to) get paid for the work that we do.

As creators, we should be able to determine how, when, and on what terms our music is made available and this is where copyright laws come in. Copyright protects us in this respect by according composers and musicians exclusive rights to the communication, public performance, and reproduction of their works. So when someone enjoys our music, these rights help us monetize that enjoyment so that we can all earn a living. That’s how the industry works, and it provides the incentive for me and my colleagues to stay involved. Digital technology can also facilitate that process by allowing better identification of my music around the world and a more precise determination of the royalties due to me from its sale or performance. Theoretically, at least, the combination of digital technology and the copyright law should be a good thing for composers and musicians in economic terms.

Unfortunately, digital technology also makes it a lot easier for people to take and use our music without our consent. Some people think that music, and movies, and book, and software are theirs for the taking just because they can find it on the internet. Political parties have been formed on this premise, and emotions can run high when it’s discussed publicly. People that would never think of stealing a television set from a store, or a car from the street, sometimes don’t think twice about stealing other people’s music, and they zealously rationalize taking it as their ‘right.’

The music industry has devoted significant time and resources combatting digital piracy, while at the same time appealing to consumers to value creativity by accessing music legally. For more than 15 years now, music creators and performers have been devastated by unauthorized downloading and streaming sites that allow the theft of our music with just a click of the mouse, and without any loss of quality to the product in the process. Needless to say creators don’t get paid when that happens. This is bad enough when the behavior is patently illegal. But when copyright protection is purposefully relaxed as a matter of policy through excessive limitations and exceptions to those exclusive rights, it becomes even worse. That’s where fair use and fair dealing can present an even bigger problem.

The fair use doctrine essentially amounts to a permissible defense typically determined by the courts, to behavior that would otherwise be infringing if done for purposes deemed beneficial to society, such as criticism, commentary, news reporting, teaching, or research. Fair dealing, by comparison, explicitly permits a certain degree of non-consensual use of copyrighted works under prescribed and limited circumstances. But regardless of what it’s called or its underlying intention, the practical effect of these limitations, exceptions, and defenses is that creators don’t get paid for certain uses of their works. It amounts to a policy determination that my rights to my property fall short of society’s right to use it without paying me. It’s a concept that I don’t think has a corollary in many/any other industries.

Fair use and fair dealing were already detrimental to creators during the old analog days when the world was a smaller place and when copyrighted works weren’t as widely distributed or made available as they are today. Serial reproduction and secondary use of music typically resulted in a degradation of its quality. But in a digital world every reproduction is as good as the master, and every performance is as crisp as the original. Much like copyright theft, excessive ‘fair use’ of copyrighted works facilitated by digital technology can thus disrupt the market for those works and threatens the continued health of the creative economy.

Singapore recently initiated a public consultation on proposed amendments to the Copyright Act. Unfortunately, most of the 16 specific proposals contemplate even further exceptions and limitations to creators’ rights than the 28 already provided under the Act. Australia is in the midst of a similar process. The discussion in both territories has been framed by some on the premise that fair use and fair dealing actually helps foster innovation and creative output. The policy implications signal a further message that copyright gets in the way of economic development and societal progression.

But most creators, including me, don’t see it that way. Comprehensive research published in September by Dr. George Ford and his colleagues at the Phoenix Center for Advanced Economic and Legal Studies in Washington, DC entitled Fair Use in the Digital Age observed that while fair use will in some cases serve societal interests which creators cannot be reasonably expected to further, the purpose of copyright itself is to provide adequate incentive for the creation of new works, and that courts and society must evaluate fair use with a close eye on its effect on creators’ incentives. I’d recommend that policy makers here in Singapore take a close look at his reasoning before making any decisions.

Dr. Ford’s subsequent article Fair Use Does Not Mean a Fair Market opines that in order to truly stimulate creativity policymakers should instead focus their attention on reducing copyright theft. He argues that any discussion of expanding or altering provisions related to copyrights exceptions and limitations must be accompanied by better enforcement of copyright than presently exists. More specifically, Dr. Ford observes that “Intellectual property laws support substantial economic activity and rouse the creative energies of humankind. Stakeholders seeking to modify them are within their rights to advocate for their favored outcomes. Emotional positions are certainly influential, but if net improvements in society’s well-being are the desired discourse on policy must eventually turn to rigorous, analytical, and credible research. Intellectual property laws deserve nothing less.”

In my view, so do Singapore’s creators. If we want to encourage a new generation of composers and recording artists to hone their crafts here, we need to value and respect their contributions and output. The way to do that is to enhance the levels of protection and give them a better opportunity for a fair return on their output. Further exceptions and limitations to creators’ rights in the name of technological innovation are not the way to promote and protect the creative industries in 2016.

Alex Oh is a prolific Singapore-based film composer, music producer and pianist. In a career spanning over a decade, he has scored many award-winning feature films in Australia, Singapore, Taiwan, and the United States, along with more than twenty television series.