COPYRIGHT

What Can I Do If My Copyright is Infringed?

If you have taken legal action against infringement of your copyright, and are successful, there are a number of remedies which the Court can grant you:

• Injunction
  An order against the infringer to stop infringing activities.
• Damages*
  An order against the infringer to compensate for the monetary loss suffered by the copyright owner. In such case, the copyright owner must prove the loss suffered.
• Statutory damages
  An order against the infringer without the need for proven loss by copyright owner. See below factors in determining the amount of statutory damages.
• Order to delivery / Order for disposal*
  An order against the infringer to surrender all infringing articles to the copyright owner, or to dispose of them.
• Account of profits*
  An order against the infringer to pay the copyright owner the profits the infringer received as a result of its use of the owner's copyright.

*Damages, account of profits and statutory damages are mutually exclusive

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Factors in Determining Statutory Damages

Some factors are taken into consideration in determining the amount of statutory damages.

• Nature and purpose of the infringing act (i.e. commercial)
• Obviousness of infringement
• Intent of bad faith
• Loss by the copyright owner, if any (i.e. actual or potential loss)
• Benefits accrued to the defendant, if any
• Conduct of both parties before and during proceedings
• Need to deter similar instance of infringement

IPOS and the WIPO Arbitration and Mediation Center have developed a mediation option for copyright disputes in Singapore, including any:

• Proceedings before the Copyright Tribunal, such as licensing disputes between collective management organisations and persons who may require copyright licences;
• Disputes relating to collective management, even if they do not fall within the Copyright Tribunal’s jurisdiction, such as disputes between collective management organisations and their members;
• Disputes relating to orphan works, such as any remuneration payable to copyright owners who are found after their works have been used; and
• Copyright disputes before the Singapore courts.
  
  The WIPO Mediation option may be especially advantageous for parties seeking to achieve global settlement of multiple related disputes, especially international parties with related disputes in multiple jurisdictions. For more details, please refer to WIPO ’s website.

In Singapore, criminal offences under copyright law include the following:

• Manufacture of infringing copies for commercial purposes
• Sale of infringing copies
• Possession or importation of infringing copies for commercial purposes
• Distribution of infringing copies for commercial purposes

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 ones.

 

Penalties

 

Criminal Liability for Wilful Infringement

It is also a criminal offence if a person wilfully infringes copyright to obtain 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.

Restriction of Importation of Infringing Copies

A copyright owner or licensee ("the objector") may serve on the Director-General of Customs a written notice stating that he objects to the impending importation of infringing copies of his works. The objector would have to provide sufficient information to enable the Director-General of Customs to identify the alleged infringing copies and to ascertain the time and place where the copies are expected to be imported. The objector would also have to satisfy the Director-General of Customs that the copies are infringing copies.

Upon receipt of such a notice, the Director-General of Customs will take appropriate action to seize the infringing imports and inform the objector and importer of the seizure. The objector can then decide whether to institute an action for copyright infringement in Court and notify the Director-General of Customs accordingly within a period of 10 working days from the Director-General of Custom's notice of seizure. If the objector does not institute an action in Court and there is no written notice from the importer consenting to the seized copies being forfeited to the Government, the Director-General of Customs shall then release the seized copies to the importer.

 

Detention and Examination of Infringing Copies

Any appropriate officer of Customs or Police ("an authorised officer") may also exercise his power to detain goods that he reasonably suspects are infringing copies. The goods may be imported into or exported from Singapore or are goods in transit that are consigned to a person with a commercial or physical presence in Singapore.

Upon detention, the Director-General of Customs shall notify the copyright owner and the importer/exporter/consignee, and hold the infringing copies for 48 hours. If no further action is taken by the copyright owner, the detained copies will be released to the importer/exporter/consignee.

However, during the 48-hour period, in the case of imports, the copyright owner may serve a formal notice requesting the further detention of the seized copies. If the copyright owner serves such a notice, the seized copies will be detained for a further period of 10 working days, within which the copyright owner has to institute an action for copyright infringement in Court and notify the Director-General of Customs. If the copyright owner does not do so, the detained copies will be released to the importer.

In the case of goods that are to be exported from Singapore or are in transit with a local consignee in Singapore, the copyright owner has 10 working days to institute an action for copyright infringement in Court and serve on the Director-General of Customs a court order authorising further detention of the copies, if he first places a security within 48 hours of the Director-General of Custom's notification.

In addition, an authorised officer has wide powers to examine any goods, including goods in transit, that he reasonably suspects to be infringing copies of any copyright material.

With how easily content can be reproduced and disseminated digitally, copyright owners now also employ technological protection measures (TPM) to prevent unauthorised access or use of copyright works. TPM covers many different types of technologies used to control access to copyright content. Content that is protected by these measures could include digital music, movies, games, software and many more.

With TPM applied to your copyright works, you, as the owner, may take action against a person who:

1. Scenario A - knowingly circumvents (i.e. to avoid, bypass remove, deactivate, descramble, decrypt, or impair) a technological measure that effectively controls access to a work
2. Scenario B - manufactures, imports, distributes, offers to the public, provides or otherwise traffics in any device, product or component which
   • is promoted, advertised or marketed for the purpose of circumventing the technological measure,
   • has limited commercial significance other than to circumvent the technological measure, or
   • is designed or made primarily for the purpose of circumventing the technological measure ("circumventing device");
3. Scenario C - offers to the public or provides any service which
   • is promoted, advertised or marketed for the purpose of circumventing the technological measure,
   • has limited commercial significance other than to circumvent the technological measure, or
   • is performed primarily for the purpose of circumventing the technological measure ("circumventing service").

 

Criminal Liability in Respect of Circumvention of TPMs

The law criminalises the above acts when performed willfully and/or for the purpose of obtaining commercial advantages or private financial gain.

 

Civil Remedies

The owner of the copyright may take civil action against a person who does any of the acts described above. Civil remedies available include:

1. Injunction;
2. Either damages (including any profits that are attributable to the circumvention of the TPM); or statutory damages in lieu of damages of not more than $20,000;
3. Order for delivery up of any articles used to carry out the circumvention of the TPM to the copyright owner or exclusive licensee;
4. Order for destruction.

Rights management information (RMI) includes information identifying the author of a work, and the terms and conditions relating to its use. It is used by authors of digital works to identify their works or provide information about the copyright work.

An example of an RMI is a digital watermark that authenticates the source of a digital photograph.

Where RMI in electronic form

• is attached to or embodied in a copy of a work; or
• appears in the communication or making available to the public a copy of a work,

an action may be brought against a person if, without the consent of the owner or exclusive licensee of the copyright in the work, the person does any of the following acts:

1. Knowingly removes or alters the RMI;
2. Distributes or imports for distribution the RMI that has been altered; or
3. Distributes, imports for distribution, communicates or makes available to the public copies of a work in respect of which the RMI has been removed or altered.

The person performing any of the above acts must also know or ought reasonably to know that the act will induce, enable, facilitate or conceal an infringement of the copyright in the work.

 

Civil Remedies

The owner of the copyright may take civil action against a person who does any of the acts described above. Civil remedies available include:

1. Injunction;
2. Damages (including account of profits); or statutory damages in lieu of damages of not more than $20,000;
3. Order for delivery up of any articles used to carry out the prohibited act to the copyright owner or exclusive licensee; or
4. Order for destruction.