The Copyright Bill
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The Copyright Bill, first read on 6 July 2021 was tabled for a second reading on 13 September 2021 and was passed on the same date. The Copyright Bill is set to come into effect in November 2021 and therefore will only apply to agreements, if any, entered into after the Bill has come into force. The key changes that were proposed and which will be introduced are explored in this update.
01. Default ownership of works
02. Acknowledging creators and performers
03. Communication of copyright work without the copyright owner’s authority 04. Equitable remuneration for sound recordings
05. From “Fair Dealing” to “Fair Use”
06. Use of online materials for educational purposes by non-profit schools
07. New exception for uses of works for computational data analysis
08. Facilitating the work of galleries, libraries, archives, and museums
09. Adjusting existing provisions for print-disabled users
10. Protecting certain exceptions frim being restricted by contracts
11. Setting an expiry date for the protection of unpublished works
01. Default ownership of works
02. Acknowledging creators and performers
03. Communication of copyright work without the copyright owner’s authority 04. Equitable remuneration for sound recordings
05. From “Fair Dealing” to “Fair Use”
06. Use of online materials for educational purposes by non-profit schools
07. New exception for uses of works for computational data analysis
08. Facilitating the work of galleries, libraries, archives, and museums
09. Adjusting existing provisions for print-disabled users
10. Protecting certain exceptions frim being restricted by contracts
11. Setting an expiry date for the protection of unpublished works
For more information, please contact: Dinesh.T@titoisaaclaw.com
1. Default ownership of works
Once the Copyright Bill comes into force, creators of photographs, portraits, engravings, sound recordings and films, whether commissioned or otherwise, will, by default, be the owner of copyright in the work. This is a shift from the current default position which provides that the commissioner of the works owns the copyright to the same unless the parties had contracted otherwise.
Notwithstanding the changes brought about by the Copyright Bill, parties are still at liberty to contract for a position other than that of the new default position.
In the context of an employer-employee relationship, the employer currently owns the copyright to literary, dramatic, musical and artistic works that are created by the employees in the course of their employment.
Whilst this default position has not changed under the Copyright Bill, what has changed is that the copyright to sound recordings and films created by employees in the course of their employment will also be owned by the employer once the Copyright Bill comes into force.
Similar to the context of commissioned work, parties in an employer- employee relationship can also contract with each other and agree to adopt a position that is contrary to the default position.
The implication of these changes is that parties ought to be aware of the new default positions and what they are agreeing to when contracting for the creation of works as their use of the copyrighted works will be affected by this.
For example, where the creator of a work has, by way of contract, assigned the copyright to the work to the commissioner of the same, the creator should negotiate for terms and conditions in the contract for the future use of the copyright material (i.e photographs to be used on the photographer’s website).
On the flipside, where the new default position is adopted, commissioners of works must be aware that their rights in respect of the commissioned work will now be curtailed as a result of the changes brought about by the Copyright Bill coming into force.
Notwithstanding the changes brought about by the Copyright Bill, parties are still at liberty to contract for a position other than that of the new default position.
In the context of an employer-employee relationship, the employer currently owns the copyright to literary, dramatic, musical and artistic works that are created by the employees in the course of their employment.
Whilst this default position has not changed under the Copyright Bill, what has changed is that the copyright to sound recordings and films created by employees in the course of their employment will also be owned by the employer once the Copyright Bill comes into force.
Similar to the context of commissioned work, parties in an employer- employee relationship can also contract with each other and agree to adopt a position that is contrary to the default position.
The implication of these changes is that parties ought to be aware of the new default positions and what they are agreeing to when contracting for the creation of works as their use of the copyrighted works will be affected by this.
For example, where the creator of a work has, by way of contract, assigned the copyright to the work to the commissioner of the same, the creator should negotiate for terms and conditions in the contract for the future use of the copyright material (i.e photographs to be used on the photographer’s website).
On the flipside, where the new default position is adopted, commissioners of works must be aware that their rights in respect of the commissioned work will now be curtailed as a result of the changes brought about by the Copyright Bill coming into force.
2. Acknowledging creators and performers
Where there has been use of copyrightable work in public (sharing it online, or publishing it, or including it in booklets/brochures etc.), there must be acknowledgement of its creator or performer. Such identification shall be“reasonably prominent” and made in a manner the author so wishes to be identified.
However, the right to identification will not apply where the copyright owner is unable to be identified or the copyright owner either waives (in accordance with the Copyright Bill) or consents to not being identified. This exception to identification also applies where it is a computer programme; or where the author created the work while under the employ of his/her company; or where the Government is the first owner.
The acknowledgement of creators / performers or lack thereof is also captured by what is termed as “Permitted Use” which is discussed under the same heading. Under the “Permitted Use” exception, the creator / need not be acknowledged where the use of the copyrightable work is for
(i) examinations;
(ii) artistic works in public places (only for works);
(iii) incidental inclusion in films, television broadcast, or cable programmes (only for works);
(iv) judicial proceedings;
(v) industrially applied artistic works (only for works); fair use for the purpose of reporting news; or
(vi) other prescribed circumstances.
However, permission must be still be sought for use of the copyright work from the copyright owner for use of the work even when relying on a “Permitted Use” exception. It is important to distinguish that the “Permitted Use” exception relates to the identification of the author and does not dispense with the need for the copyright owner’s permission to use the work.
Do also note that even where one has bought over the copyright in a work from the creator and therefore owns the right to use the said work, it does not dispense with the need to identify the creator of the work unless the
above exceptions apply.
However, the right to identification will not apply where the copyright owner is unable to be identified or the copyright owner either waives (in accordance with the Copyright Bill) or consents to not being identified. This exception to identification also applies where it is a computer programme; or where the author created the work while under the employ of his/her company; or where the Government is the first owner.
The acknowledgement of creators / performers or lack thereof is also captured by what is termed as “Permitted Use” which is discussed under the same heading. Under the “Permitted Use” exception, the creator / need not be acknowledged where the use of the copyrightable work is for
(i) examinations;
(ii) artistic works in public places (only for works);
(iii) incidental inclusion in films, television broadcast, or cable programmes (only for works);
(iv) judicial proceedings;
(v) industrially applied artistic works (only for works); fair use for the purpose of reporting news; or
(vi) other prescribed circumstances.
However, permission must be still be sought for use of the copyright work from the copyright owner for use of the work even when relying on a “Permitted Use” exception. It is important to distinguish that the “Permitted Use” exception relates to the identification of the author and does not dispense with the need for the copyright owner’s permission to use the work.
Do also note that even where one has bought over the copyright in a work from the creator and therefore owns the right to use the said work, it does not dispense with the need to identify the creator of the work unless the
above exceptions apply.
3. Communication of copyright work without the copyright owner’s authority
Essentially, copyright owners can now rely on the Copyright Bill to bring an action against those who facilitate the communication and/or access of the copyright work to the public. This was designed with the intention of clamping down on illegal set-top boxes and illegal streaming apps.
A copyright owner may also sue anyone whose actions fall under (i) selling such devices (i.e illegal set top boxes and/or apps);
(ii) importing such devices for the purpose of commercial dealing (iii) offering or exposing for sale by way of trade; or
(iv) providing such service that prejudices the copyright owner’s rights. “Service” includes a “subscription service and the provision of information.”
A copyright owner may also sue anyone whose actions fall under (i) selling such devices (i.e illegal set top boxes and/or apps);
(ii) importing such devices for the purpose of commercial dealing (iii) offering or exposing for sale by way of trade; or
(iv) providing such service that prejudices the copyright owner’s rights. “Service” includes a “subscription service and the provision of information.”
4. Equitable remuneration for sound recordings
Sound recording companies will now have a right to collect licence fees for the broadcast or public performance the music that was published for “commercial purposes”. A failure to make such payment is considered to be an infringement of copyright. Payment is usually collected by Collective Management Organisations (“CMOs”). CMOs are organisations that assist in the management of copyright of works and performances. The large-scale collection of royalty ensures that there is a reduced transactional fee that would be borne by the members of the CMOs.
Businesses that play recorded music i.e. restaurants, hotels, retail shops will now have to obtain a licence for public performance in addition to a licence for the public performance of the underlying music in the sound recording.
Notwithstanding the above, the right to collect such licence fees does not arise where the
(i) the public performance is carried out by receiving a broadcast (i.e through a radio); or
(ii) constitutes fair use; or
(iii) internal school performances.
Businesses that play recorded music i.e. restaurants, hotels, retail shops will now have to obtain a licence for public performance in addition to a licence for the public performance of the underlying music in the sound recording.
Notwithstanding the above, the right to collect such licence fees does not arise where the
(i) the public performance is carried out by receiving a broadcast (i.e through a radio); or
(ii) constitutes fair use; or
(iii) internal school performances.
5. From “Fair Dealing” to “Fair Use”
“Fair Use” is “a permitted use of a work to make a fair use of the work”. The reason for the change of terminology is to allow for better understanding and application of “Fair Use” exceptions.
In the past, when deciding on whether a copyright infringement falls under “fair dealing” in relation to an “audio-visual item”, there was a need to consider a fifth element of “the possibility of obtaining the audio-visual item within a reasonable time at an ordinary commercial price”. The Bill removes this and only the following issues need to be addressed for “Fair Use” in relation to a work or a protected performance (including a recording of the performance):
(a) the purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes;
(b) the nature of the work or performance that is being used;
(c) the amount and substantiality of the portion used in relation to the whole work or performance; and
(d) the effect of the use upon the potential market for, or value of, the work or performance.
The existing “Fair Dealing” exceptions for the purpose of criticism or review, reporting of news and research or study will continue to be included under the “Fair Use” exceptions.
Under the concept of “Fair Use”, it is still important to ensure whether the “work or performance is sufficiently acknowledged” or if “sufficient acknowledgement is impossible” due to practical reasons.
This leads us to the next question on what would be considered as “sufficient acknowledgement is impossible”. “Sufficient acknowledgement” of an authorial work would be if the acknowledgement identifies the work by its title or other description AND the author. “Authorial work” is defined as a “literary, dramatic, musical or an artistic work”.
In the past, when deciding on whether a copyright infringement falls under “fair dealing” in relation to an “audio-visual item”, there was a need to consider a fifth element of “the possibility of obtaining the audio-visual item within a reasonable time at an ordinary commercial price”. The Bill removes this and only the following issues need to be addressed for “Fair Use” in relation to a work or a protected performance (including a recording of the performance):
(a) the purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes;
(b) the nature of the work or performance that is being used;
(c) the amount and substantiality of the portion used in relation to the whole work or performance; and
(d) the effect of the use upon the potential market for, or value of, the work or performance.
The existing “Fair Dealing” exceptions for the purpose of criticism or review, reporting of news and research or study will continue to be included under the “Fair Use” exceptions.
Under the concept of “Fair Use”, it is still important to ensure whether the “work or performance is sufficiently acknowledged” or if “sufficient acknowledgement is impossible” due to practical reasons.
This leads us to the next question on what would be considered as “sufficient acknowledgement is impossible”. “Sufficient acknowledgement” of an authorial work would be if the acknowledgement identifies the work by its title or other description AND the author. “Authorial work” is defined as a “literary, dramatic, musical or an artistic work”.
6. Use of online materials for educational purposes by non-profit schools
The new Copyright Bill will now allow schools and non—profit education institutions to use resources from the internet for education purposes whereas under the current law, the exception only applied to traditional material. However, to qualify under the exception, the resources must meet the following criteria:
(a) The material was “generally accessible by the public free of charge using the Internet”;
(b) The user must cite the internet source where the material was used from and the date it was accessed on;
(c) The user gives sufficient acknowledgement of the work, recording or performance, if and to the extent that the necessary information is available from the Internet source;
(d) The material may only be communicated within the school’s network (i.e. Intranet)
(e) The user was unaware that the material was a copyright infringing material at the time of access.
However, do note that materials which are free only for a limited period such as a free trial period or under paid subscription are not considered as materials which are “generally accessible by the public free of charge using the Internet”.
(a) The material was “generally accessible by the public free of charge using the Internet”;
(b) The user must cite the internet source where the material was used from and the date it was accessed on;
(c) The user gives sufficient acknowledgement of the work, recording or performance, if and to the extent that the necessary information is available from the Internet source;
(d) The material may only be communicated within the school’s network (i.e. Intranet)
(e) The user was unaware that the material was a copyright infringing material at the time of access.
However, do note that materials which are free only for a limited period such as a free trial period or under paid subscription are not considered as materials which are “generally accessible by the public free of charge using the Internet”.
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7. New exception for uses of works for computational data analysis
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The new exception allows for copying of the material for work or a recording of protected work as long as the copy is made for a computation data analysis or is used in the preparation for computational data analysis.
However, the user may not copy the work for any other purposes or supply it for the same. The user must also have had lawful access to the said material.
However, the user may not copy the work for any other purposes or supply it for the same. The user must also have had lawful access to the said material.
8. Facilitating the work of galleries, libraries, archives, and museums
Refining the existing exceptions and introduction of new exceptions will now allow galleries, libraries, archives, and museums to function as intended – by allowing them to copy the works for administrative purposes (preservation, internal record keeping, cataloguing) or by allowing them to display a replication during exhibitions (while the original is being restored).
The new exceptions will also allow the above-mentioned group to make copies of the original work as part of their publicity materials as well.
The new exceptions will also allow the above-mentioned group to make copies of the original work as part of their publicity materials as well.
9. Adjusting existing provisions for print-disabled users
New refinements to the exceptions will now allow works to be converted into accessible formats when a new accessible format copy of the work is not available (i.e Braille version or a photographic version) and will no longer be required to make a payment for licence fees. Under the current laws, such licence fees are to be paid to the copyright owners of the works to be converted upon request.
This change would allow a person with print disability to avoid double- payment as they would have ordinarily have to purchase a normal copy of the work for conversion.
The caveat here is that intention of the conversion must not be for profit and should only be for personal use or for the purposes of research.
This change would allow a person with print disability to avoid double- payment as they would have ordinarily have to purchase a normal copy of the work for conversion.
The caveat here is that intention of the conversion must not be for profit and should only be for personal use or for the purposes of research.
10. Protecting certain exceptions from being restricted by contracts
Under the current Copyright Act, exceptions to the law may be nullified through contractual terms, save for certain categories of work relating to computer programs. The changes brought about by the Copyright Bill has expanded the list of categories for which the exceptions cannot be restricted via contract.
The list has been expanded to public collections, computational data analysis and judicial proceedings / legal advice. As such a contractual term seeking to restrict permitted use of such works may be void.
For all other works, a rights owner may, by contract with a person, exclude or restrict the application of a permitted use to that person. However, these contracts must be individually negotiated and the terms must be fair and reasonable under the circumstances the contract was negotiated on.
The list has been expanded to public collections, computational data analysis and judicial proceedings / legal advice. As such a contractual term seeking to restrict permitted use of such works may be void.
For all other works, a rights owner may, by contract with a person, exclude or restrict the application of a permitted use to that person. However, these contracts must be individually negotiated and the terms must be fair and reasonable under the circumstances the contract was negotiated on.
11. Setting an expiry date for the protection of unpublished works
Unpublished works used to enjoy perpetual copyright protection however under the Bill, these unpublished works will no longer enjoy the same and instead enjoy protection for only a limited period.
For authorial works, the works will be protected for 70 years from the death of the author.
For films and anonymous or pseudonymous works, the works will be protected for 70 years from the making of the work, the making available of the work to the public or first publication.
It would be good to note that there will be a transitional period that ends on 31 December 2022. Works published during this transitional period will enjoy a longer duration of protection than if they were to be published after the period.
As it can be seen from the Copyright Bill, there has been a strengthening of the protection offered to creators of copyrightable work. The language has also been given more clarity which in turn makes the Copyright Bill moreaccessible to those who need to rely on the law to protect and enforce their rights.
For authorial works, the works will be protected for 70 years from the death of the author.
For films and anonymous or pseudonymous works, the works will be protected for 70 years from the making of the work, the making available of the work to the public or first publication.
It would be good to note that there will be a transitional period that ends on 31 December 2022. Works published during this transitional period will enjoy a longer duration of protection than if they were to be published after the period.
As it can be seen from the Copyright Bill, there has been a strengthening of the protection offered to creators of copyrightable work. The language has also been given more clarity which in turn makes the Copyright Bill moreaccessible to those who need to rely on the law to protect and enforce their rights.
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Illustration
A publisher owns an unpublished manuscript which was made by an author who died in 1940. If the publisher either does not publish the manuscript or publishes it only after the transitional period (which ends on 31 December 2022), copyright would have expired in 2010 (70 years after author’s death). But if the publisher publishes the manuscript in 2022, during the transitional period, copyright would expire in 2092 (70 years after publication) instead. (Source:https://www.ipos.gov.sg/docs/default- source/resources-library/copyright/copyright-bill-factsheet.pdf) |
As it can be seen from the Copyright Bill, there has been a strengthening of the protection offered to creators of copyrightable work. The language has also been given more clarity which in turn makes the Copyright Bill moreaccessible to those who need to rely on the law to protect and enforce their rights.
