Pirate websites are the target of proposed changes to the Singapore Copyright Act, announced today. The issue is sure to make a lot of headlines and provoke a lot of debate over the coming weeks, so let’s take a look at what has been announced and what it might mean for rights holders, ISPs, consumers and the pirate sites themselves.
What has been announced?
Singapore’s Ministry of Law has announced plans to update Singapore’s Copyright Act to address the issue of websites that infringe (or facilitate the infringement of) copyright. The proposed update would simplify the court process for “injunctive relief” – that is, make it easier for rights holders to obtain an injunction for pirate websites to be blocked. A public consultation has been launched (alongside some draft legislation) and will run until 21 April 2014, to enable interested parties to comment.
What is the current legal position on “injunctive relief”?
Under the current copyright framework, rights owners can issue takedown notices to Singaporean ISPs for them to block access to pirate services. Unfortunately, the process has not been effective because if ISPs do not respond to the takedown notices then the rights holders would have to sue the ISPs for copyright infringement. Given the likely time and cost involved in doing so, and the uncertainty of outcome, rights holders have been reluctant to follow this process and pirate sites have been able to operate with relatively low risk of being blocked. It now looks like this is going to change with the proposed new rules.
What would the new rules look like?
Under the proposed new rules, rights holders will be allowed to apply directly to the courts for injunctions to prevent access to pirate sites.
Importantly, these rights holders would not first have to establish liability of the ISP for copyright infringement. The idea is that this would streamline the process for the rights holders and, from an ISP perspective, save them being implicated in a copyright infringement case (when they would argue that they do not control the content on their networks).
The proposed rules do not follow the “graduated response” approach taken in some European countries, where individual users found to be engaging in piracy can face warnings and, ultimately, penalties for doing so. Although the Ministry of Law considered these approaches, it seems to have concluded that implementing such measures in Singapore would be too intrusive upon Singaporean internet users.
Which sites could be targeted?
The proposed rules are aimed squarely at the worst offenders, whether they are streaming sites, download sites, P2P sites or otherwise. The Ministry of Law talks about sites that “flagrantly infringe copyright” and “egregious” offenders. But what makes a particular site “egregious”?
Although there won’t be an exhaustive list of factors that will determine whether a site falls under the rules or not, the Ministry of Law does intend for there to be a non-exhaustive list for the court in question to consider, being:
1. whether the site’s primary purpose is to commit or facilitate copyright infringement;
2. whether the site makes available, and/or contains directories, indexes or categories of, the means to commit copyright infringement;
3. whether the owner of the site demonstrates a disregard for copyright;
4. whether access to the site has been disabled by orders from the courts of other countries on grounds of or related to copyright infringement.
5. whether the site contains guides or instructions on circumventing measures that disable access to the online site; and
6. the number of visitors to the online location.
Could search engines or user-generated content sites be caught by the rules?
That is certainly not the Ministry of Law’s plan. In fact, it has been particularly clear that it does not intend that search engines (such as Google), or websites based primarily on user-generated content (such as YouTube), to find themselves being blocked. In this respect, the ongoing arguments between rights owners and Google as to whether Google’s services play a role in surfacing the infringing sites in the first place, and whether it is doing enough to tackle the issue of piracy on its platforms, looks set to continue.
Although the use of illegal online pirate services is a global phenomenon, levels of piracy in Singapore are right up there with the highest seen anywhere. A recent study by Sycamore found that 7 out of 10 Singaporean youths admitted to being active viewers of pirated content. Singapore has an increasingly lively creative scene, well-supported by the Government and regulators, and the Government appears to recognise a need to update the copyright framework to protect those who invest in the development of content. Interestingly, of all the measures being discussed to address the piracy problem, blocking access to internet sites appears to have the broadest public backing, with the study revealing that more than half of Singaporeans say they would support such a move where the sole commercial purpose of the site is to illegally profit from copyright content.
How big a change is this?
On the one hand, it is worth bearing in mind that we are not really talking about changing the fundamental principles of Singaporean copyright law – that is, to protect people who invest time in creating something from having their creations exploited by others. What this is really about is ensuring that these laws keep pace with technology and changing viewing habits of users. Nonetheless, it is expected that the changes would have a significant impact on pirate sites. It is widely agreed that there are no “golden bullets” when taking on the piracy problem but we do know that injunctive relief, when used properly, can be effective. For example, traffic to The Pirate Bay reportedly dipped by 69% within a year after five European countries restricted access to the website. So there is no doubt that these measures will be an important part of the solution for the creative industries.
What are the next steps?
The consultation opened on 7 April and will run until 21 April. The Ministry of Law is seeking feedback (they are sure to receive plenty!) in electronic or hard copy form to the contact details available here. Things are expected to move quickly after that and it seems quite possible that Singapore will have updated its Copyright Act by the middle or latter part of 2014.
Photo of the laser show at Marina Bay Sands by erwinsoo, who takes some amazing photos of Singapore.