When Minister for Law, Prof S Jayakumar introduced amendments to the Copyright Act in parliament this year, he described the changes as promoting knowledge-based industries and encouraging "creative innovation" in Singapore [1]. Unfortunately, a careful reading of the Amendments shows that the law is intended to regulate the passive consumption of existing content rather than to promote the creation of new content in Singapore.
In the past, network service providers were in a legal limbo because it was not clear whether they were violating the law just by transmitting and storing copyrighted materials over the internet. As part of the Amendments, service providers were given the right to carry out these functions but strings were attached to this right.
Under the "take down" provisions of Sections 193C (2) and 252B (2), the service provider's protection from copyright liability is taken away if it fails to remove any material which is the subject of a copyright complaint. Copyright owners are thus given the leverage to demand that disputed material be removed or "taken down", just by making a statutory declaration stating that they believe that their copyright has been infringed.
The Ministry of Law [2] and the Business Software Alliance [3] have claimed that service providers have a choice of whether or not to remove material which is under dispute, but this choice is an illusion. The new law prevents users from taking any legal action against the service provider if the ISP takes down their websites. In contrast, copyright owners continue to have the right to sue if the ISP decides not to take down the website.
If the ISP removes the website, it is free of any liability but if it allows the website to remain, it may face civil or even criminal charges of copyright infringement. Is that really a choice ? Far from striking a balance [4] between the interests of copyright owners and users, the amendments drastically tilt the balance in favour of copyright owners.
Current provisions of the Copyright Act allow libraries and educational institutions to copy more than 10% of a work provided they fulfill certain conditions, including marking the copies with a prescribed notice [5]. The Act does not actually say that these notations must be made; it simply says that a defence against copyright infringement may not be available if the notation is not made. If you follow the logic of the Law Ministry spokesman, libraries have a choice of whether or not to make this notation. In reality, however, the double negative makes a positive and libraries treat the notations as compulsory.
How would a network service provider treat the take down requirement after receiving a copyright complaint? Would it treat take-down as discretionary or compulsory ? A network service provider is not qualified to determine what does or does not constitute copyright infringement. That is the prerogative of the courts not of private corporations, especially not private corporations meeting behind closed doors. By oversight or by design, the government has extended quasi-judicial powers to network service providers but then set the rules such that service providers can only favour copyright owners over users.
In a letter to the Straits Times Forum, a Law Ministry spokesman referred to "similar amendments" which had been adopted by the United States [2], indicating that the government was well aware of the US' Digital Millennium Copyright Act (DMCA) [6]. Under the DMCA, users are given the right to challenge accusations of copyright infringement and the service provider is required to restore within 10-14 business days any materials removed, unless the accuser files suit in federal court to obtain an injunction against the allegedly infringing materials. In comparison, under the Singapore Act users have no right of appeal to service providers' decisions and no right to sue for redress.
Essentially, the difference between the American and the Singapore laws is that in the US, the copyright dispute is between the puported copyright owner and the website owner - The service provider is only a bystander. In Singapore, however, the service provider is held to be responsible for the copyright infringement unless it capitulates and immediately removes any material which is the subject of a complaint.
The Law Ministry spokesman has claimed that the Amendments were merely intended to protect service providers [2]. If that were the case, however, the government could simply have extended to network service providers the same broad immunities that telephone companies have even when crimes are planned or conducted using the telephone network. Instead, the government has selectively enacted changes that favour copyright owners and neglected to enact protections for the rights of users.
The term "copyright" is unfortunately a bit misleading. Copyright cannot be considered a fundamental human right in the same sense as the right of freedom from arbitrary detention or the right to free speech. If you think about it, preventing one person from publishing a work just because the work is similar or even identical to another person's work is a restraint on the free speech rights of the first person.
Historically, both in the United Kingdom and the United States, copyright was considered to be as much a necessary evil as a virtue [7]. Over the years, however, both the US and UK legislatures heard the pleas of publishers and have gradually extended the rights of copyright owners. Whereas the duration of copyright protection was 14 years in 1790, it is now the life of the author plus 75 years in the US.
In Singapore, copyright has largely been imposed upon the populace from above. Because unfair dealing (i.e. piracy) is so widespread unfortunately, there is very little appreciation of what constitutes "fair dealing". Fair dealing includes, but is not limited to acts such as taping TV programs for private use or photocopying insubstantial portions of a book. Legally, fair dealing or "fair use", to use the American term, is not limited to the examples specified in statute and the boundaries of fair use are determined by the court on a case-by-case basis. Not surprisingly, the interests of copyright owners often conflict with the public right to fair use.
One illustration of this is the website-annotation service provided by Third Voice, the Singaporean-founded company picked by Fortune magazine as one of the Cool Companies of 1999 [8]. Are Third Voice notes "derivative works" ? Do they make fair or unfair use of the web traffic generated by other people's websites ? Do they debase websites in violation of the website designer's right not to have his work distorted ? [9,10]
If Third Voice had remained in Singapore, they might already have been shut down by website owners crying copyright infringement. Luckily for them, they chose to operate in the US, a jurisdiction which has greater awareness of the necessity of allowing fair use both as a matter of principle to allow the free flow of information, and also as a spur to creativity.
To consider another hypothetical scenario, let's say, Rocky, a local musician, composes and records a jingle for radio and TV advertisements for Megasoft, a large multinational corporation. Megasoft places a digital copy of the jingle on its' Singapore office's website and Rocky also places a copy of the jingle on his own website, hosted by a Singapore ISP. When Megasoft finds out that Rocky has placed a copy of the jingle on his website, it demands that Rocky remove the jingle on the grounds that it owns the copyright to the jingle. Rocky, however, retorts that Megasoft only has a license to use the jingle for radio and TV advertisements and that Megasoft does not have the right to use it on its website or even to digitize it. Despite this, Megasoft makes a statutory declaration stating that it believes that its copyright was infringed by Rocky's website and demands that Rocky's ISP remove the jingle or disable access to Rocky's website.
This scenario is loosely based upon a real-life copyright case in Singapore last year when a professional photographer sued mobile phone operator M1 for exceeding the terms of the license which he had granted to it regarding the use of certain photographs. In that case, the photographer eventually prevailed in court, but the fictional musician Rocky would have a much harder time defending his digital rights in cyberspace.
Under the 1999 amendments, it is not necessary for a court to find that copyright has been infringed, or even that there is reasonable cause to believe that copyright has been infringed, before Megasoft can demand that the Singapore ISP remove Rocky's website. If the ISP were to remove Rocky's jingle as a result of Megasoft's statutory declaration, Rocky would be barred from seeking an injunction to restore his website. In addition, even if he sues Megasoft and the court decides that Rocky did not infringe Megasoft's copyright, he would not be able to claim compensation from either Megasoft or the ISP for damage caused by the removal of his jingle.
This imbalance between the rights of accuser and accused is all the more ironic in view of the fact that other clauses of the same 1999 Amendments strengthen the right of importers of physical goods to obtain damages if their goods are seized because of a copyright complaint but the objector loses his case in court or fails to file suit at all within 10 working days [12]. Under the Copyright Act, if any goods are seized because of a copyright complaint, the goods are automatically returned to the importer after a specified period, unless the complainant can obtain a court order against that. In addition, even before Customs will act on a copyright complaint, the complainant has to post a bond to cover both the government's costs and possible damages to the importer [13].
There is a glaring difference between the protections given to importers of physical goods and the total lack of protection given to internet content creators. In cyberspace there is no "put back" clause requiring content to be restored if the objector cannot prove his case, and there is no requirement that compensation be paid to the website owner if he is cleared of copyright infringement charges after his site has been taken down. Is this a legal situation which is conducive to the creation of web content in Singapore ?
It could be argued that the Amendments make it easier for authors like Rocky to defend their copyright. Unfortunately, this only works if the other party is also using a Singapore network service provider. If the other party were using a service provider outside Singapore, Rocky would face much greater obstacles in trying to take down his opponent's site. Let's say Megasoft's site, including that of its Singapore branch office, is hosted by a US online service provider. Rocky could file a notice of copyright infringement under the DMCA, but Megasoft may then file a counter-notice and Rocky would have to file suit in the US to press his claims [14].
In his home country, however, Rocky has no right to file any counter-notice against Megasoft's charges. Even if he files suit in Singapore against both Megasoft and his ISP, the Singapore court would not be able to award him any damages, and may not even be able to issue an injunction ordering the ISP to restore Rocky's web pages.
It is hard to avoid the conclusion that Rocky would be better off hosting his website on an overseas service provider instead of a local one. At the very least, he could avoid being treated as a second-class citizen in copyright disputes.
While browsing the web recently, I came across a site, www.asiaphoto.com that gives its physical address as Pagoda Street in Singapore, but when I checked the IP address, I found that the site is actually hosted by a US network service provider. This site, which is a photography site, includes web pages for several Singapore photographers, professional and amateur. It also provides links to other web sites belonging to local photographers. Out of the eight links, only four were hosted by Singapore ISPs while the other four were hosted by US service providers.
This is certainly an unscientific sample, but I have no doubt that foreign service providers have a large share of the web hosting market of individuals and companies physically located in Singapore. Singapore ISPs are handicapped by a number of factors, but these changes to Singapore's copyright law will handicap them still further. Given a choice, and on the internet we do have a choice, why would any website owner want to submit to Singapore's blatantly biased copyright legislation ?
It has been suggested that the Minister for Law create safeguards for website owners via subsidiary legislation [15]. Unfortunately, this would not be possible as the amended Act only requires the complainant to declare that he believes that his copyright has been infringed and to supply "such other information as may be prescribed". Requiring the complainant to perform any other actions such as consulting with the website owner, pledging to institute legal action or to pay compensation if ordered to do so, would be contrary to the Act and cannot be effected by subsidiary legislation alone.
The amended Act also adds provisions which supposedly allow the transfer of electronic copies of material so that the transferee can do anything which the transferor can do with regard to making copies of the material [16]. But subsection (2) of the new Section 193F allows publishers to impose "express terms" which limit the scope of any transfer. What happens if these express terms include a prohibition on making backup copies ?
In 1998, Section 39 of the Copyright Act was amended so that owners of a legitimate copy of any computer program could make backups of the program even if the express terms of the software license forbade the making of backups [17]. A mere one year later, the legal situation has become muddied. Computer programs are clearly electronic works, so how will the new Section 193F coexist with Section 39 if the license agreement prohibits the making of any backups ? Will only the first owner be allowed to make backups, but subsequent owners be required to comply with more restrictive terms imposed, for example, by "shrinkwrap licenses" which prohibit backups or require a fee to be paid for every backup made ?
This Bill was thus a typical example of the speed and efficiency of Singapore's legislative process. Hopefully it is not typical of the quality of Singapore's legislation. The flaws in this legislation were immediately obvious to me, and I am neither a lawyer nor an internet professional.
In his 28th August reply to my first letter to the Straits Times, the Ministry of Law spokesman attempted to fob me off with his comment that the amendments were based on "Similar amendments ... introduced in the US late last year" [2].
Before the internet, it would have taken me months of library research to check his claim, if I could even check it at all. With the internet, I found analyses and the full text of the DMCA [6] within hours, and was able to demolish the spokesman's claims immediately.
It had seemed fair and reasonable to me that website owners should be able to challenge accusations of copyright infringement, but I did not have specific knowledge of the DMCA at first. It was the Law Ministry spokesman who drew attention to the DMCA and allowed the world to see that Singapore's legislation did not have put back clauses and is biased in favour of copyright owners.
Public relations gaffe notwithstanding, there is nothing now to prevent the government from putting the take down clauses into effect at any time.(See addendum) The BSA, certainly, is continuing to lean on the government to do so [3]. The only parties that the government may listen to now are the ISPs who may be beginning to realize that they will have to lobby the government not just to shield them from lawsuits from copyright owners, but also to provide a level playing field for them to compete with foreign service providers.
It will only take one well-publicized case for customers to desert local web-hosting services in favour of foreign ones. For a customer, the American DMCA provides better protection, and many other jurisdictions do not have comparable laws at all.
As part of its efforts to entice global software and multimedia giants to invest in Singapore, the government has rewritten our laws to reflect the concerns of copyright owners. Unfortunately, in the process they may also have sown the seeds for the destruction of Singapore-based web-hosting services.
Section 39 - Backup of computer programs
Amendments up to 1999 incorporated in above extracts.
1. Leslie Koh, "Copyright Act extended to cyberspace, new media," Straits Times, August 18,1999.
2. Pang Khang Chau, "Changes to Copyright Act protect service providers," Straits Times, August 28, 1999.
3. Samantha Santa Maria, "Anti-piracy group seeks ISPs' help," Straits Times, September 7, 1999.
4. Pang Khang Chau, "Amendments strike a balance," Straits Times, September 2, 1999.
5. Sections 45, 46, 48, 52, 54 and 54A.
6. For analyses of the DMCA from the viewpoint of service providers, especially libraries and educational institutions, see http://www.sla.org/govt/lutzker.html and http://www.sla.org/govt/band.html. The Library of Congress has a summary of the Act at http://lcweb.loc.gov/copyright/legislation/dmca.pdf and the full text of the Act is available at http://lcweb.loc.gov/copyright/legislation/hr2281.pdf
7. Charles C Mann, "Who Will Own Your Next Good Idea ?" The Atlantic Monthly, September, 1998. Available on the web at http://www.theatlantic.com/issues/98sep/copy.htm
8. Melanie Warner, "Notepads for websites," in "Cool Companies 1999, Fortune's Information Technology Special Report", Fortune, vol. 140, no. 1, pg. 37, July 5, 1999. Available on the web at http://www.pathfinder.com/fortune/cool/thirdvoice.html
9. Melanie Warner, "Keep your bleeping notes off my website," Fortune, vol. 140, no. 2, pg. 116, July 19, 1999.
10. http://saynotothirdvoice.com/info/letters.html and http://www.villagevoice.com/columns/9930/howe.shtml
11. Mr. Pang's repeated claims (Refs. 2 and 4) that website owners can obtain compensation are specious. I rebut these claims in Ngiam Shih Tung, "Reconsider changes to Copyright Act," Straits Times, August 26 (1999) and Ngiam Shih Tung, "Copyright Act amendments tilt balance," Straits Times, August 31, 1999.
12. Section 140IA and Copyright (Border Enforcement Measures) Regulations 1998.
13. Sections 140I
14. Technically, the notice and take-down provisions of the DMCA would not apply if Megasoft is operating its own network connection rather than buying space from a third party service provider. In such a case, it would still be true that the only way for Rocky to pursue his claims would be by suing Megasoft in a US court.
15. Steven Lim Wei Kong, "Safeguards needed on copyright," Straits Times, September 2, 1999.
16. Explanatory statement to Clause 21, Government Gazette Bills Supplement 27/1999, August 4, 1999.
17. Section 39 (4) as amended. Previous clauses of the Act which allowed shrinkwrap licenses to restrict the making of backups were also deleted in 1998.
18. The amendments were reported on radio the evening of the 17th. Newspaper reports (Ref. 1) appeared the following day.
The best place to start for an overview of copyright in the digital age is Charles Mann's article "Who Will Own Your Next Good Idea", published in the September 1998 issue of The Atlantic Monthly. Conveniently enough, the full article is available on the web, http://www.theatlantic.com/issues/98sep/copy.htm. A discussion on the future of copyright is also archived at this site.
Ms. Margaret Neo of the Singapore law firm Joseph Hoo Morris and Kumar has written an article ( http://home.pacific.net.sg/~jhmk/article15.html) on this and other aspects of the Copyright (Amendment) Act 1999. There are also several other articles on Singapore and foreign law at this firm's website.
Some other good FAQs on copyright are
For views from the copyright owners' side, see:
These sites lean more towards the "information wants to be free" viewpoint:
Some government and international organization sites:
A second round of exchanges of letters to the Editor took place in December and stretched into the new millennium, sparked by the coming into effect of the Copyright (Amendment) Act 1999 and accompanying regulations on 15 December 1999.
Perhaps the most interesting question that comes out of this series of letters is that if Singapore's Ministry of Law argues that the US Copyright Office's interpretation of US Law cannot be taken at face value, how should we take the Law Ministry's interpretation of Singapore Copyright law ?
Rev. 0 (31 Oct 99)
Rev. 1 (13 Dec 99) Copyright (Amendment) Act 1999 coming into force 15 Dec 99.
Rev. 2 (2 Jan 00) Added Bibliography, Postscript.
Rev. 3 (10 Jan 00) Added JHMK reference.