'Future-proofing' Singapore's Copyright Act

Proposed revamp seeks to ensure law is flexible enough to protect creative people and society in years to come and in the face of change.

By Adrian Tan, Partner, TSMP Law Corporation

Singapore's Copyright Act was enacted in 1987, more than three decades ago. That year, Ronald Reagan was President of the United States, Lee Kuan Yew was Singapore's Prime Minister, The Simpsons first appeared on television, and the initial section of something called the MRT was opened between Yio Chu Kang and Toa Payoh.

It was an era that knew nothing of social media, smartphones, the gig economy, the sharing economy, or peer-to-peer torrents. In fact, the public hadn't even started using the Internet, as Tim Berners-Lee hadn't even created the World Wide Web yet (that would come a couple of years later).

In today's Internet Age, Singaporeans have been trying to apply provisions of the Copyright Act to new and developing situations, which writers of the 1987 Act never dreamed of.

The good news is this: an upgrade is available.

Legislators around the world have been struggling to re-shape intellectual property laws to suit the demands of today's society. In Singapore, our Ministry of Law and the Intellectual Property Office of Singapore (IPOS) have just released proposals to revamp and overhaul our venerable Copyright Act, to make it fit for a 21st century nation that creates, shares and devours information online. These proposals come after two years of consulting the creative community, studios, broadcasters, publishers, night clubs, technology companies, the Law Society and the public.

There are a total of 15 proposals that will become law. Two of the most interesting ones to me, as a lawyer and a novelist, relate to the way we share and use creative works in the age of social media. This is what we need to know about these two proposals and how they will affect us.

CREDIT WHERE CREDIT IS DUE

Under the existing law, people who create literary, dramatic, musical and artistic works don't have a right to be identified as the creator. Our words, pictures or performances on video clips may go viral on social media - we won't have a right to demand that we are recognised as the creator or performer. In legal terms, we say that the creator does not have a right of attribution.

That is unsatisfactory. In today's social media world, creators and performers want their work to be widely shared and distributed, and may not even care about receiving royalties each time that happens. But what many of them do care about is attribution: artists do want to be recognised for the impact that they make. So, the right of attribution is about valuing recognition, rather than valuing compensation. It informs the world that the work that they are enjoying was made possible through the creativity of an identified individual. It gives the artist due credit.

The proposal by MinLaw and IPOS gives a right of attribution to two groups of people: authors of literary, dramatic, musical and artistic works, and performers of performances. The term "author" in this situation goes beyond the definition of book authors, to include anyone who creates an original literary work, composes music, paints a picture, or creates a graphic image.

The proposal makes it clear that "proper attribution helps creators and performers build their reputation and incentivises creation of new works. This is especially important in the digital era, where works are easily misattributed or not attributed at all."

Of course, authors and performers can waive their right of attribution, in a written document. So, someone can ghost-write an autobiography for a celebrity, and then sign a contract saying that the celebrity can claim to be the author.

Once the proposals become law, it will empower authors and performers to be named whenever their works are used, unless they specifically waive that right. It raises the level of protection offered to creators of intellectual property.

This means that creators would receive better protection for their rights in Singapore, compared with some other developed countries, including the US, where creators of literary or musical works do not have such rights of attribution.

In this age of sharing, we find ourselves forwarding, sharing, reviewing and commenting on stories, pictures and video clips. Is that legal, or will that be copyright infringement?

Under our Copyright Act, we can copy or use copyrighted matter, without the permission of the copyright owner, in limited situations. Those cover certain purposes, such as research and reporting of current events.

For example, let's imagine a situation where a songwriter releases an album, and his lyrics become controversial. A news blog reports the controversy, and reproduces the lyrics for its readers. The songwriter cannot sue the news blog for copyright infringement: the news blog is permitted to reproduce the lyrics as it is reporting on a current event.

Using copyright material in this way is called "fair dealing". "Fair dealing" in Singapore is similar to "fair use" in other countries, so I will use the term "fair use" here.

Fair use is an important idea, in copyright. Copyright is meant to restrict the use of information to allow the copyright owner to exploit his work commercially. But society has always understood that there should be limits to copyright. Artists are inspired by other artists. To an extent, each artist builds on the work of a predecessor. So, it is important to allow artists to copy a little bit of an existing work, if it means that society will gain by having new creative work. That is the justification for fair use.

Fair use enables a rapper to compose a song using melodies from another musician. It allows a novelist to quote lines from another writer, in order to tell his own story. It permits an artist to incorporate someone else's creative work into his own. An example is Andy Warhol's artwork, Campbell's Soup Cans. It is depicts 32 prints of the famous Campbell's Soup tins. The labels on those tins are copyrighted. Even so, most lawyers would agree that Warhol did not infringe copyright as what he was doing amounted to fair use.

I think we can all agree that society is enriched if artists are given more leeway to express themselves, and that is one justification for the fair use law.

Fair use will also facilitate the reporting and publicising of creative work, and make it easier to review, critique and educate society on literature, music and art.

In technology, the fair use exception allows each successive generation of programmers and entrepreneurs to develop and refine the ideas and products of the previous generation. No one has to start from scratch. Programmers use bits of code that their predecessors had written, in order to create something better.

The new proposal liberalises fair use. Currently, in order to determine whether something is fair use, the Copyright Act takes into account a number of factors.

For example, if you are copying something to be used for a non-commercial, educational purpose, then it is easier for your use to be regarded as fair use. That's the first factor.

The second factor concerns the nature of the work you are copying. If you copy parts of a factual document, for the purposes of disseminating information, that will be easier to justify as fair use. The idea is that society benefits from the dissemination of factual information. But if you copy parts of a creative work, then that will count against a fair use argument.

The third factor relates to quantity. The more you copy of something, the more difficult it will be for you to argue for fair use. Importantly, if you copy what is deemed the "heart" of the material, it will be hard for you to claim fair use.

So, if you copy just the first line of the chorus of that iconic Bee Gees hit Stayin Alive ("ah, ah, ah, ah, stayin alive, stayin alive"), that may already be too much. That's because you are copying the most famous part of the work. (And yes, in giving that example, I did indeed reproduce copyrighted material, but I will claim fair use.)

The fourth factor relates to commercial value: if, as a result of your copying, you devalue the work that you copied, or you cause financial loss to the copyright owner, then it will undermine any argument for fair use.

The final factor in our Copyright Act has always been controversial. The idea behind it was this: if you could have obtained the right to copy the work within a reasonable time at an ordinary commercial price, and you didn't, then it would be hard for you to claim fair use.

This factor has always been somewhat tricky to understand and explain. In today's fast-moving world, what would "reasonable time" mean? And who is to say what an "ordinary commercial price" is? It's just too vague.

The way law works is that when something is vague, we sometimes look at how the courts in other jurisdictions have dealt with it. But this final factor is uniquely Singaporean, which means that we cannot look elsewhere for guidance. So, the final factor has created real-world problems because people have found it difficult to explain and apply.

The final factor also created a logical problem: it seems to be a rehash of the fourth factor, or at least a subset of it. The final factor is meant to take into consideration the economic effect of the copying, which is also what the fourth factor is doing. So, there is a big overlap.

The proposal is now to junk this fifth factor. That is important, because it removes a great deal of uncertainty from the process, and makes it easier for us to understand and evaluate whether something is or isn't fair use. It refocuses us on the first four factors, which already cover the main questions surrounding fair use. In short, it makes the arguments for fair use a lot fairer.

READ THE PROPOSALS

The Copyright Act is an important piece of legislation. It matters to you if you are in the technology industry, or the creative industry, or the news industry, or in academia, or advertising, or if you simply use social media. In this digital age, all of us are creating, sharing and critiquing content on a daily basis.

These conversations on social media enrich our lives, and connect us better with everything that is going on. The two proposals I highlighted are particularly relevant, because they make it a little bit easier for us to share and discuss matters, while reminding us to give credit, when we use someone else's work.

In fact, all the proposals are thoughtful, and deserve to be read and debated. They are a good attempt to future-proof our Copyright Act. They ensure that our laws remain flexible and dynamic enough to protect creative people, and society, in the years to come, whatever new trends or technological surprises emerge. In the words of geeks, the proposals are designed to be "platform independent" of technology.

The proposals also show that the lawmakers have been thinking hard about how to protect our intellectual property, while making them available to those who need to use them. That is good, because we always need to have good ideas about how to protect good ideas.

Source: Business Times © Singapore Press Holdings Ltd. Permission required for reproduction.