Infringement and Enforcement
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Infringement occurs when one has not obtained consent from the copyright owner to do something that only the copyright owner has the exclusive right to do. For example, a person infringes copyright if he photocopies an article without the consent of the copyright owner.
It is important to note that one does not need to have reproduced the entire copyright work before infringement takes place. It is an infringement as long as a substantial amount of the original work, quality wise, has been copied.
In an infringement dispute, a substantial amount is not measured merely in terms of the quantity that has been copied. The Court also takes into account the nature of the portion that has been copied or reproduced. If the portion copied constitutes the primary part or essence of the copyright work, the Court may construe that a substantial amount has been copied.
Infringement also occurs when one deals commercially with infringing copies, e.g. if a person:
- imports infringing copies for sale or distribution;
- sells (including distribution for trade or any other purpose to an extent that affects prejudicially the copyright owner) or lets for hire infringing copies; or
- offers infringing copies for sale or hire by way of trade.
The copyright owner may take legal action against a person who infringes his copyright.
Please refer to Exceptions to Copyright Infringement.
Remedies are the measures of relief that the Court can grant to a person whose rights are infringed. In civil lawsuits, remedies for copyright owners include injunctions (to stop someone from doing something), damages (whether actual damages, as proved, or statutory damages), and account of profits. Where it is proper to do so, considering the flagrancy of the infringement, the Court may also order additional damages to be paid by the infringing party to the copyright owner.
>> An award of statutory damages is a remedy (instead of damages) that the Court may order against the infringing party without the need for the copyright owner to prove the loss he has suffered as a result of the infringement. This is subject to a per-work ceiling of $10,000 and to an aggregate ceiling of $200,000 for a particular action.
In determining the amount of statutory damages, the Court is to consider these factors:
- nature and purpose of the infringing act, including whether the infringing act was of a commercial nature or otherwise;
- flagrancy of infringement;
- if the act was done in bad faith;
- any loss suffered or likely to be suffered by the copyright owner;
- any benefit shown to have accrued to the defendant;
- conduct of both parties before and during proceedings;
- the need to deter similar instances of infringement; and
- all other relevant matters.
In Singapore, criminal offences under copyright law include the following:
- manufacture of infringing copies for sale;
- sale of infringing copies;
- possession or importation of infringing copies for the purposes of sale, hire, or distribution for trade or for any other purpose to an extent that will affect the copyright owner prejudicially;
- distribution of infringing copies for trade or for any other purposes to such an extent as to affect the copyright owner prejudicially.
In any of the instances above, it must be proved that the infringing party knows or ought reasonably to know that the copies are infringing copies.
The law provides that where a person is found to have five or more infringing copies of any work, unless otherwise proven, it is presumed that the possession of the infringing copies was not for the purpose of private or domestic use; or that such possession was for the purpose of sale.
The penalties for manufacture for sale; sale of infringing copies; and possession or importation of infringing copies for the purposes described above are:
- a fine not exceeding $10,000 per infringing copy, up to a total of $100,000 per charge; and/or
- imprisonment up to five years.
The penalties for distribution of infringing copies for trade or for other purposes to such an extent as to affect the copyright owner prejudicially are:
- a fine not exceeding $50,000; and/or
- imprisonment up to three years.
The making or possession of an article specifically designed for making infringing copies, e.g. machinery for manufacturing infringing copies, is also an offence attracting the following penalties:
- a fine not exceeding $20,000 per article; and/or
- imprisonment up to two years.
It is also a criminal offence if a person wilfully infringes copyright for the purpose of obtaining a commercial advantage and/or to an extent that is significant.
>> Commercial advantage means any direct advantage, benefit or financial gain for a business or trade. As to whether the infringement is to an extent that is significant, this is judged based on the volume and value of infringing copies, whether the infringement has a substantial prejudicial impact on the copyright owner and all other relevant matters.
The penalties for such wilful copyright infringement are:
- 1st offence, a fine not exceeding $20,000 and/or imprisonment up to six months;
- 2nd or subsequent offence, a fine not exceeding $50,000 and/or imprisonment up to three years.
>> Other acts that have civil and criminal liabilities include:
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