On 23 August 2016, Singapore’s Ministry of Law and IPOS announced a public consultation on proposed changes to the Copyright Act. The proposed changes would represent the first major overhaul of copyright law in Singapore for a decade. In this post, we comment on what the changes could mean for the media and technology sectors.
Five Key Takeaways
- VPNs are in the spotlight again
We’ll start with the issue that has consumed the most media attention – the legality of Virtual Private Networks (VPNs). The volume of coverage is surprising given that VPNs are not even mentioned in the consultation paper. Nonetheless, there has been speculation in some quarters about the possibility of VPN services being banned altogether in Singapore. This is of course a misreading of what is a highly-nuanced issue. No one is seriously proposing that VPN technologies be subject to a blanket ban in Singapore. There is widespread acceptance that VPNs can and are used for legitimate purposes. Instead, the concern in the media industry is about the deliberate promotion, sale and use of VPNs as a tool to bypass geographical content restrictions. The most common example is companies who promote VPN services as a way to watch, for example, US Netflix or UK Amazon Prime Video, even though those services are not licensed for use in Singapore.
From a media industry perspective, there are two major issues with the promotion, sale and use of VPNs to bypass geographical restrictions. The first is a copyright issue. The international TV, film and music industries are built upon a system of territorial licensing. Rights are usually licensed by country. The reason for this is simple – it generates revenues which, in turn, incentivises creative industries to invest more in new content. Any law that limits the ability for media companies to grant or exercise rights by territory arguably puts a major dent in the industry’s business model and that could lead to lower investment in content and, ultimately, a more limited range of lower-quality content for consumers.
The second issue of concern for the media industry is content regulation. Singapore, like many countries, has a range of content regulations to protect community standards. Content delivered via VPN might comply with the content regulations in the territory at which it is targeted but it might not comply in Singapore. Not only do VPNs bypass copyright restrictions, they can also bypass content regulation, which arguably risks creating a playing field that is tilted against local, licensed operators who play by the local rules.
As the consultation rightly points out, “A good copyright regime balances between providing exclusive rights as an incentive to create and disseminate new creative works, and providing appropriate access to those works for the benefit of other creators and society at large”. VPNs are undoubtedly one of the trickier aspects of that balancing act and this is an issue that will run and run during this consultation and beyond.
Key takeaway: Whilst the consultation does not refer to VPNs specifically, they will undoubtedly now be addressed given the volume of press coverage. Interested parties, including content owners and VPN providers, will want to make sure their voices are heard in this debate by responding to the consultation.
- Content owners might choose to register their copyright works
As in most countries, copyright in Singapore arises automatically and there is no registration requirement. That position rightly will not change. However, some rights owners have expressed concerns about the difficulties of establishing ownership of works they have created. MinLaw and IPOS are therefore considering the introduction of a “copyright registry”, which would allow rights owners to register their copyright. The idea is that such a registry would not be mandatory – copyright would still arise automatically – but that registering would provide a higher degree of comfort because the creator can rely on any certificate(s) issued by a neutral third party to evidence their ownership.
Key takeaway: If this amendment is passed, content owners may want to build a process for registering their future copyright works, as well as considering an audit of their current works to determine which, if any, to register. The idea is that any licences and assignments should also be reflected in the registry. Commissioning or co-production arrangements will also need to be clear as to who is responsible for registration.
- A need to review contracts for language on “rights of attribution”?
Creators of copyright works in Singapore are protected by “moral rights”. These ensure that they are protected against, for example, others attributing authorship of their work to someone else. A common term in contracts where a creator is commissioned to create a work by someone else is that the creator agrees to waive his/her moral rights. One of the proposed changes in the consultation is a further right that goes beyond “moral rights”, known as a “right of attribution”. Moral rights only allow creators to prevent false attribution, they do not require them to be attributed or credited as a creator. The consultation proposes to introduce this new right. This might introduce some practical difficulties, such as what constitutes appropriate attribution, how to attribute where the method of distribution does not easily enable attribution, and, indeed, whether attribution is appropriate at all, if the parties agreed a commissioning arrangement and attribution is not part of the commercial deal. Fortunately, the consultation suggests that the parties can “contract out” of this requirement if they agree to do so.
Key takeaway: Media companies who commission content would, if the amendment is passed, need to review their standard credits clauses to ensure that rights of attribution are addressed – in particular, whether attribution will be provided at all and, if it is, in what form.
- A new “text and data mining” exception
Data is at the heart of Singapore’s “Smart Nation” initiative and MinLaw and IPOS are weighing up the introduction of a new exception to drive data analytics innovation. The consultation acknowledges that technology advances have led to new research tools and methodologies such as text and data mining, where large volumes of information and data are processed to generate insights that would previously have been impossible through manual effort. Most of these tools depend, to some extent, on the making of copies – for example, copying text or data onto a server for processing by a data analytics company.
The devil will be in the detail on this one. On the one hand, a move to foster innovation in new technologies such as adtech will undoubtedly be applauded, particularly in the marketing and advertising sector, since it is very much in line with Singapore’s Smart Nation mission. On the other, companies who generate large amounts of content or data, or who invest substantial time in building databases, and wish to control how that content and data are used, will have concerns about how the exception will work in practice. This concern will not have been helped by a proposal in the consultation that this exception cannot be “contracted out of”, which means that tools such as End User Licence Agreements, which limit rights to process information, could not be used to prevent text or data being “mined” within the confines of this exception, even if it is for commercial purposes.
Key takeaway: Very little detail is provided about how the proposed exception will work. Companies who process large amounts of text and data, such as adtech and data analytics companies, as well as companies who own large volumes of text and data, will want to shape the direction by responding to the consultation on this topic.
- The “fair use” exception might become narrower
A common question, in the context of copyright, is whether a particular usage of a copyright work, such as a photograph, is “fair use”. There are many different shades of “fair use” in countries around the world but Singapore’s “fair use” is probably closest to the US concept of “fair use”.
In Singapore, there is a non-exhaustive list of five factors to take into account in determining whether a particular use is “fair”. One of the factors is whether it is possible to obtain the work within a reasonable time at an ordinary commercial price (the rationale being that, if it is not possible to do so, then a limited usage of the image may be “fair”). This factor was introduced more than a decade ago and the landscape has moved on, such that it will be very rare for works to be truly unavailable for licensing. The consultation therefore suggests removing this factor.
Key takeaway: Some companies, particularly in the fast-paced world of online news sites and “listicles”, have built entire businesses by relying on “fair use”. They tend to do so based on carefully-drafted internal policies which guide journalists and other business users on what types of usage are “fair”. If this amendment is passed, these policies will need to be reviewed, and team training rolled out, to ensure that availability of the work for licence is not a factor in determining whether usage is “fair”.
What else is on the table?
The consultation is very broad and there are many other factors under consideration. These include addressing “orphan works”, further copyright exceptions in the education sector and new information tools for independent creators. The full text is available here.
What happens next?
There are various questions in the consultation paper and interested parties have until 24 October 2016 to respond. Responses can be submitted here.
With thanks to Matt Pollins of Olswang Asia LLP.