In this article, we highlight four key changes that are expected to have the most impact on the day-to-day operations of businesses, explain what they mean in practical terms and provide tips for dealing with challenges posed by the changes.
Key Change #1: Creators and performers will have a new right to be identified
In a nutshell
Creators and performers will be given a new right to be identified whenever their work or performance is used. The identification must be “clear and reasonably prominent”. The identification must also appear on each copy of the work or performance or, if this is inappropriate, then it should be likely to be noticed by a person acquiring a copy. If there are multiple creators or performers, each of them will have to be identified. However, there is no need to identify where the creator or performer is unknown. There is also no need to identify in the case of works made in the course of employment where the employer is the first owner of copyright; and performances given for the purposes of advertising any goods or services (e.g., if a musician is hired to play a jingle for use in a commercial, or a dancer is hired to perform at a promotional roadshow).
For works made before the Bill is enacted, the right to be identified will not apply to any act permitted by virtue of an assignment or licence of copyright. In short, works governed by existing agreements are not of concern. The right will also not apply to performances given before the Bill is enacted.
What this means
For instance, if a business engages an artist or writer to create content for its marketing campaign, the artist or writer will have to be identified whenever the content is used, whether online or in any direct marketing material (e.g., magazines, print ads and fliers). This can give rise to practical difficulties, for instance, due to space constraints, particularly if there is a long list of joint creators or the product has many different components (e.g., text, artwork, music), each with different creator. Also, what constitutes “clear and reasonably prominent” identification would appear to depend on the context and circumstances in which the content is used.
If it is necessary or desirable to avoid identification:
- One option is to ask the creator or performer to waive his right to be identified – either in general, whenever the work or performance is used or in only specific circumstances. Any waiver must be in writing and signed by the creator.
- If working with a design agency, there is no need to identify the creator if he or she is the agency’s employee and the copyright belongs to the agency. However, if it cannot be certain that this is the case, the safest course is still to ask for a waiver from the creator.
Key Change #2: Creators of certain works will be the default owner of copyright
In a nutshell
Creators of photographs, portraits, engravings, sound recordings and cinematograph films will, by default, be the copyright owner of the works. This is the case even if the works are commissioned by a customer. The position can be modified by contract.
What this means
For instance, if a business engages a photographer to take photographs at an event, the copyright in the photographs will belong to the photographer by default. If the business wishes to own the copyright in the photographs (e.g., so that it can reproduce the same in its annual reports and publicity materials), it will have to procure an assignment from the photographer. Notably, under the current Copyright Act, this is already the position for authorial works in general.
- When commissioning the creation of any works, if a business wishes to own the copyright in the work, it must ensure that it obtains an assignment from the creator.
- As a reminder, regardless of whether the copyright belongs to the creator or customer, where an individual is captured in a photograph or film, consent of the individual may have to be obtained for any use of the work in order to comply with data protection laws.
Key Change #3: New exception to copyright infringement for use of works for computational data analysis
In a nutshell
This is the so-called “data mining exception”. Computational data analysis is defined as including: (i) using software to identify, extract and analyse data from a work or recording of a performance; and (ii) using the work or recording itself as an example to improve the functioning of a computer program (e.g., using images to train an AI program to recognise images). The user must have lawfully accessed the work or recording. If the work accessed is an infringing copy, the user must not have known this. If the work is taken off a “flagrantly infringing online location” (“FIOL”, defined as an online location that is used to flagrantly commit or facilitate rights infringements), the user must not have known or have reason to believe that the work accessed is an infringing copy. This exception cannot be excluded or modified by contract.
What this means
- If the user is found to have accessed an unauthorised copy of the work (e.g., from a third party website), he should immediately be notified of this. Once the user is fixed with this knowledge, the exception will cease to apply.
- On the other hand, businesses which wish to use works for computational data analysis will have to be mindful of the requirement for lawful access of the work. If the business comes to be aware – either at the time of access or subsequently – that it is dealing with an infringing copy, the work should not be used. Additionally, if the work is taken from a website which is suspected to be a FIOL, then extra caution should be taken. This is because, if the website is found to be a FIOL, the exception will not apply as long as the copyright owner can establish that the user ought to have known that the copy of the work made available on the website is an infringing copy.
Key Change #4: Exceptions that cannot be restricted by contract
In a nutshell
There are currently a number of exceptions in the Copyright Act that may not be restricted by contract. This list will be expanded to include additional exceptions, most notably, the “data mining exception”. Additionally, all other exceptions may only be restricted or excluded by contract only if (i) the contract is individually negotiated – that is, not a standard form contract (e.g., a EULA); and (ii) the restrictive term or condition satisfies the requirement of reasonableness. Whether the term is “fair and reasonable” will be determined by a set of factors set out in the Bill.
These provisions will apply to all contracts – including contracts which pre-existed the enactment of the Bill but may only be relied on in respect of acts carried out after enactment. Also, these provisions will apply even to contracts governed by foreign law where either (i) the choice of foreign law is wholly or mainly for the purpose of evading the operation of any copyright exception; or (ii) where the counterparty is a consumer who was a Singapore resident at the time of contract and the essential steps for the making of the contract were taken in Singapore.
What this means
This is a major shift from the current position where apart from specific exceptions – most notably exceptions which permit the backing up; decompiling; observing, studying and testing of a computer program, contracting parties may freely agree to exclude or modify the operation of any copyright exceptions. Apart of the expanded list of exceptions which cannot be contracted out of, a business’ ability to exclude or modify any other copyright exceptions will also be restrained:
- For contracts which are individually negotiated, any term that purports to exclude or modify a copyright exception will be void unless it is “fair and reasonable”. One of the factors for determining this is the parties’ relative bargaining positions. It may be more difficult to prove that any term satisfies the condition in a business-to-consumer (B2C) context.
- For standard form contracts – whether in a business-to-business (B2B) or B2C context – it will no longer be possible to exclude the operation of any copyright exceptions.
- Businesses may wish to review their existing contracts and take stock of any terms which purport to exclude or modify the operation of any copyright exceptions. Any such terms may no longer be valid once the Bill is enacted.
- Practically speaking, any restrictive term is likely to be challenged only if it is sought to be enforced against the counterparty. As such, there is no strict need to amend existing contracts to delete any restrictive terms so long as the business is prepared not to enforce these terms. Still, a business may wish to re-evaluate its value proposition and to consider if its products and services should be repriced taking this into account, and/or the terms should be re-drafted.
- Down the road, when negotiating contracts with a copyright angle, the factors for determining whether a restrictive term is “fair and reasonable” should be borne in mind during the negotiations so as to increase the chances that any restrictive terms will be upheld. These factors include: (i) the parties’ relative bargaining positions; (ii) whether the counterparty received an inducement to agree to the restrictive term (or whether he had the opportunity to enter into a similar contract without persons without having to accept a similar term; and (iii) whether the counterparty knew or ought to have known of the existence and extent of the restrictive term.
- On the other hand, businesses which are users of works who are sued for breach of contract and/or copyright infringement can consider if its activity complained of could fall under a copyright exception (e.g., fair use). If so, it may be possible to challenge the validity and enforceability of the contractual terms proscribing such activity on the basis that they impermissibly seek to exclude or modify the exception.
Apart from the changes highlighted above, some other changes that the Bill will bring about include:
- Re-categorising the “fair use” exception
- Limiting the duration of copyright protection for unpublished works
- Introducing a new exception for use by non-profit educational institutions of materials made available free-of-charge online for educational purposes
- Introducing new exceptions or amendments to existing exceptions pertaining to galleries, libraries, archives and museums, print-disabled users and official government registers
- Introducing a new right of sound recording companies to receive equitable remuneration when their sound recordings are broadcasted or publicly performed
- Introducing new civil and criminal liabilities for dealing with devices or services which facilitate the streaming of audio-visual content from unauthorised sources
Some of these changes are of significance to businesses in the media industry. These are discussed in our second article on this topic – available here. If you wish to obtain more information on any of the provisions discussed in this article or any other provisions in the Bill, please feel free to reach out to us.