The Copyright (Excluded Works) Order 2008 will come into force on 1st January 2009 and will remain in force until 31st December 2012. This new Order will replace the Copyright (Excluded Works) Order 2005, which expires on 31st December 2008.
Section 261C(1)(a) of the Copyright Act (Cap. 63) prohibits the circumvention of technological access control measures as applied to copyright material and protected performances. The copyright owner or performer may bring a civil suit against any person who circumvents a technological access control measure without his authorization. In addition, any willful contravention of the prohibition for the purpose of obtaining a commercial advantage or private financial gain is an offence carrying a maximum penalty of a $20,000/- fine.
The prohibition may, however, hinder a person from legitimate and authorized use of a protected work. An example would be a situation in which a hospital maintained data using software that requires an obsolete dongle to access. The obsolete dongle is damaged and prevents access to software, hence preventing access to the important data. As the dongle is now obsolete, there is no way to repair or obtain a new dongle from the manufacturer. If the hospital staff decide to circumvent the access control, then they would be at risk of a civil suit by the copyright owner. The hindering of such a legitimate use is undesirable.
In order to ensure that legitimate uses of works are not hindered by the prohibition on the circumvention of technological access control measures, the Minister for Law is empowered to make an order exempting from the operation of the prohibition under section 261C(1)(a) specified works, other subject matter or performances or classes of works, other subject matter or performances, the purpose for which the circumvention may be carried out and the person who may carry out the circumvention. The Minister is also empowered to make the order in a case where he is satisfied that a legitimate dealing with the work, subject matter or performance is likely to be adversely impaired or affected by the prohibition on circumvention.
In order to prepare a new Order that would meet the needs of users who are using works, other subject matter or performances legitimately, IPOS conducted two public consultation exercises. The first public consultation exercise was conducted from 15th June to 15th August 2006. Members of the public were invited to comment on:
(a) whether the existing list of excluded works should continue to be exempted from the prohibition against circumvention of technological access control measures as applied to them; and
(b) whether there are any other specified copyright material and performances; or specified classes of copyright material and performances, which should be exempted from the prohibition against circumvention of technological access control measures as applied to them.
Based on the feedback received in the first public consultation exercise, IPOS prepared a draft Copyright (Excluded Works) Order 2007. A second public consultation exercise was conducted from 15th March to 30th April 2007. The objective of the public consultation was to invite comments on the list of excluded works, other subject matter or performances.
In the second public consultation exercise, a total of 15 responses were received from copyright owners, government agencies and tertiary educational institutions. Generally, copyright owners (through their associations) were concerned about the breadth of the rules; while users indicated that more concessions should be granted to them.
IPOS has carefully considered the feedback and noted the concerns raised by users and copyright owners. The draft Order 2007 has been revised to address the concerns. The Copyright (Excluded Works) Order 2008 may be accessed here (28KB).
A table comparing the rules in the 2005 Order and the new 2008 Order may be accessed here (32KB).