Delivered in Parliament on 13 September 2021
The Copyright Bill before us today was described by WIPO Magazine as Singapore’s biggest copyright reform in 30 years, and is drawn from an extended period of public consultation which started in 2016.
The objectives of the Bill are laudable, and include upholding Singapore’s international obligations relating to intellectual property (IP), updating and rationalising various aspects of our existing laws on IP, and improving accessibility to and ease of understanding these laws. Critically, it also confers upon authors and performers the moral right to be identified, and includes provisions governing fair usage of IP matters. It is these final two elements of the Bill that I will concentrate my speech on.
Rights of creators and performers
First, on the granting of new rights for creators and performers. Divisions 1 and 2 of Part 7 automatically grant authors the right to be identified in relation to the works they produce, and for performers to be identified with their performances. This is a welcome step further than the current regime, under which creators and performers only have a right to prevent the false attribution of another person as the author or performer.
We support the recognition of intellectual property in the works of authors and performers, yet, I believe that there is room for us to expand such recognition.
In many other jurisdictions – for example, the UK, US, Australia, New Zealand and various European countries – creators and performers earn residual payments, or royalties, for the use of their works and performances. For example, writers and actors of television programmes broadcast by the British Broadcasting Corporation (the BBC) earn royalties. This is in contrast to the situation in Singapore, where writers and actors of Mediacorp television programmes do not earn royalties.
It is further notable that creators and performers have organised themselves into guilds and unions, such as the powerful British performers’ union “Equity” and the Writers’ Guild of Great Britain, which have not only been crucial in fighting for better pay and working conditions for their members, but are also key in protecting such practitioners and their livelihoods in the wake of the devastation wrought by Covid-19, by negotiating with employers to improve working terms and conditions, improve and ensure diversity in their ranks. They also have a right to be consulted on various matters. The ability to have such representation and rights recognised was particularly important as the industry was wrecked by the lockdowns and restrictions brought on by the Coronavirus, and will be key in helping them to weather any future major disruptions. In contrast, the Screenwriters’ Association (Singapore) – while doing good work for the training and development of its members – does not have the power to negotiate minimum standards and protections for its members, and is limited to providing feedback to IMDA focus group meetings upon invitation.
The system in Singapore surrounding creative practitioners is therefore still very much tied with the involvement and endorsement of the Government. Therefore, the Workers’ Party would support a move that goes even further than the current Bill in giving more rights, protections and rewards to creators and performers to be in line with those in developed countries. With this in mind, I would like to ask if the Government intends to go even further to recognise the rights of creators and performers for them to receive royalty payments? Is the change in copyright law meant to be a step in that direction?
A further question arises about the presumptions that apply for authorial works that are first published in Singapore, as contained in Clause 167. I note that these assert a territorially-premised copyright claim. However, it is less clear what are the protections and provisions available for international enforcement of such claims. What cross-border legal resources are available, and are these embedded within the new Copyright protection regime? These are not abstract and theoretical questions, as recently seen in the case of a dispute that arose earlier this year over one of our beloved National Day songs.
Exceptions Introduced By The Bill
Second, I wish to raise a number of considerations and clarifications relating to the exceptions introduced by the Bill, primarily the change from a “fair dealing” to a “fair use” exception, which form an extensive part of the Bill. Division 2 of the Bill replaces the fair dealings provisions in sections 35, 36, 37, 109, 110 and 111 of the existing Act with the concept of fair use, which “depend on the facts,” while being subject to the considerations specified in Clause 191. This shifts the treatment of alleged copyright infringements away from the fair dealings doctrine – the treatment under English law, where violations must fall into categories defined in the statue – toward a more open-ended fair use doctrine, the approach adopted in the US, where factors need not match any exhaustive list.
Importantly, the Bill’s open-ended fair use exception now means that the courts need to determine whether the fair use exception applies. I note that this discretion opens up the possibility of significant ambiguity, particularly in the beginning without a body of case law to back it up. This is especially in the case of online content, and for themes that are deliberately ambiguous, such as memes or parody.
Given that an increasing number of Singaporeans are creating online content, will the Minister provide any further clarification on what would constitute fair use, or would this await the guidance of the courts when the matter has been taken to litigation? This could be confusing for existing content creators, who might only have guidance to what would constitute “fair use” of their works by undertaking costly and time-consuming litigation over the potential infringement of their ownership rights. Would IPOS provide specific illustrations of when a use connotes fair use versus when it would not? Such an approach would further the Government’s purpose for introducing the fair use exception, in particular, to “create an environment conducive to the development of creative works”.
One potential way forward would be for industry associations to take the lead and issue guidelines on what “fair use” would look like for their particular industry, an approach that the Ministry of Law appears to have considered, as mentioned in the 2019 MinLaw and IPOS Copyright Review Report. Would the Ministry provide an update on whether industry efforts are currently underway to develop such guidelines?
Moving on to a new exception contained in Part 5 Division 8, which is for the reproduction of works for text and data mining. This applies to both commercial and non-commercial activities, and would permit reproduction of works and recordings of performances for “computational data analysis”, including the preparation of works for analysis. There are protective conditions in Clause 244(2), which, amongst others, specify that the user must have had lawful access to the work or recording. While I do see that this is a helpful and necessary exception to have, particularly in the advent of more and more powerful AI capabilities and Singapore’s drive to be a Smart Nation, it remains to be seen in the real world if the safeguards and conditions are sufficient to balance protecting the rights and commercial interests of copyright holders against allowing legitimate use of copyrighted material for text and data mining purposes.
Finally, I wish to turn to the impact on consumers. While many modern end-users, raised on a steady diet of electronic media, intuitively grasp instances of copyright violations, could the Minister clarify what efforts have been undertaken to educate the public at large on what constitutes a copyright violation, how to attribute copyright owners appropriately, and how to avoid infringing copyright. After all, copyright provisions apply to all Singaporeans, and it would be especially embarrassing and unfair for our citizens – in particular that Uncle who has just discovered the joys of the ‘forward’ function on WhatsApp – to find themselves inadvertently running afoul of copyright law as a result of sharing content.
Finally, I would like to turn to the introduction in Clauses 141 and 142 of the Bill of civil and criminal penalties for engaging in commercial dealings, due to infringing set-top boxes and services, which include computer programmes and apps.
I support in principle the control of set-top boxes and related services, as this assists in the enforcement of the protection of IP rights. However, I believe that we still need to guard against a situation where IP protection results in access to programming becoming prohibitively expensive, and therefore no longer accessible to all.
It will be unfortunate if the only way in which one could lawfully gain access to content – in particular sporting events – would be to pay exorbitant amounts in order to do so. And key to this is knowing why else would many otherwise law-abiding citizens resort to using set-top boxes and services to access their desired content? The recent Euro 2020 football tournament was available only to those who could pay the exorbitant fee of over $90 to have access to all matches. This is in addition to the special subscription rates that go over and beyond basic sports packages that avid followers of the English Premier League have to pay. And overshadowing all this is that Singaporeans pay significantly more for such content than those in most other countries, even those with higher costs of living.
I would not be the first to point out here that in years past, Singaporeans could watch live broadcasts of any sporting events, and certainly I am old enough to remember the thrill of being allowed to watch the epic Wimbledon final between Steffi Graf and Martina Navratilova in 1988, which was telecast on free-to-air TV. Nowadays, if I want to see if Roger Federer would ever win another Slam, I would need to pay at least $49.90 a month or $449 a year for the Sports Plus package to watch it on TV, after spending lots of time and effort navigating the confusing variety of different sports the different channels and providers offer, and deal with changes to availability due to exclusivity rights expiring.
Mr Speaker, in Chinese.
Television used to be a great equaliser in Singapore, but it is ironic that the advent of paid TV in the wake of the duopoly between Singtel and Starhub – which was ostensibly to give us greater choice – has now opened up a divide between those who can afford to pay the extra subscription charges to watch top sports competitions and those who cannot afford to do so.
Now that civil and criminal liability for commercial dealings in set-top boxes and related services are being imposed, what steps will the Government take to widen access to broadcasts of sporting events? Will certain major sporting events be broadcast free-to-air or perhaps be shown at Community Clubs? This will go some way towards preserving access to sport, which has proven to be a great unifier in our otherwise multicultural and multi-ethnic nation. It could also bridge the digital divide for ordinary Singaporeans. And it will definitely give us all something to talk about over our morning kopi at our neighbourhood coffeeshops.
Mr Speaker, I support the Bill. Thank you.