Second Reading Speech By Second Minister For Law, Mr Edwin Tong SC, On Copyright Bill

13 Sep 2021 Posted in Parliamentary speeches and responses

Mr Speaker, Sir

1. I beg to move, “That the Bill be now read a Second time.”

I. Introduction

2. Sir, when the Copyright Act was first introduced in 1987, we recognised that copyright law could benefit society by encouraging the production of creative works like books, news articles, software, music, art, and films - by ensuring that the flow of such knowledge, ideas and information would not be unduly stifled.

3. To do so, copyright law needs to strike a fair balance between, on the one hand, “rights owners”, who are the owners of copyright or rights of protected performances, and users on the other hand.

4. This balance is achieved by giving rights owners the right, for a limited duration, to prevent or restrict others from using their works or protected performances, whilst also providing limitations and exceptions to those rights to allow the public to use those works or protected performances without encumbrance.

5. Over the years, technological advancements, and the market and societal changes have significantly affected how works and performances are created, distributed and consumed. So, for example:

   a. New and more accessible technologies have democratised content creation. Now anyone can be a photographer or even produce a short video or film.

   b. New platforms enable these new creators to reach their audiences directly.

   c. Faster internet speeds have shifted consumption from physical media and downloads, to streaming.

   d. And the ubiquity of smartphones has led to consumption on the go.

   e. All of these changes impact the creation and the use of copyright.

1. We embarked on a comprehensive review of the Copyright Act to ensure that the balance between rights owners and users continues to be a fair and balanced one, even amongst these changes afoot. The review included a series of public consultations in 2016, 2017 and most recently, in 2020, and a public consultation on the draft Bill was held in early 2021. We received over 500 responses from both individuals and organisations alike.

7. We heard from various stakeholders in our copyright ecosystem, who shared with us their views, perspectives and also their interests. These are the:

   a. rights owners

   b. consumers

   c. from the industry, academics, and also legal practitioners

8. This Bill, which is the culmination of the review, responds to these changes and prepares us for what lies ahead.

Overview of amendments

9. The Bill, if passed, will repeal and re-enact the existing Copyright Act.

10. To aid in understanding which provisions in the Bill relate to the provisions in the current Copyright Act, with your permission, Mr Speaker, may I ask the Clerks to distribute an Annexure to the Members? Members may also access these materials through the SG PARL MP mobile app.

11. Members will see that this Annexure cross-references each provision in the Bill to its corresponding provision in the current Copyright Act.

12. As you can see, the organisational changes are quite extensive.

13. Members may also notice that quite a few provisions in the Bill, in the Annexure that you now have before you, do not have a corresponding provision in the current Act. These are the new provisions.

14. I shall highlight some of these new changes, which fall into three broad buckets.

    a. First, changes that benefit creators and rights owners,

    b. Second, changes that benefit users and society generally; and

    c. Third, broader changes that strengthen the entire copyright ecosystem.

Provisions benefitting creators and rights owners

15. The first category of changes will benefit creators and rights owners, to reward them for their creations, and also enable them to create new works.

Granting authors and performers the right to be identified

16. Divisions 1 and 2 of Part 7 of the Bill create a new right for authors and performers to be identified, in order to accord them due recognition for their creative works.

17. Anyone who uses authorial works or protected performances in public must identify the author or performer. The specific circumstances in which identification must be given depends on the work or performance in question. So, for example, a person must identify the author of an artistic work like a photograph whenever the person:

    a. publishes it, such as in a book or perhaps in corporate materials; or

    b. communicates a visual image of it, such as sharing it online or on a social media platform.

18. The Bill also provides for exceptions where identification is not needed, including

    a. if the identity of the author or performer is not reasonably ascertainable by the user,

    b. in computer programs, or

    c. when the work is an artistic work situated in a public place.

19. Parties can continue to use contractual arrangements to manage their obligations to identify the author or performer – so where the author or performer waives his or her rights in writing, then he or she does not need to be referred to or identified.

20. The attribution rights as a creator is personal to the author or performer and cannot be assigned to a third party.

21. As this new right is separate from the economic rights relating to copyright, users must still identify the author or performer even if they have a licence to do the relevant acts comprised in copyright, such as a licence to publish the work.

22. So, in cases where the author or performer and the rights owners are not the same person, it will be necessary to obtain permission from both parties.

23. This right to be identified is only enforceable by civil means, via injunctions and damages. So clause 385(2) provides that the Court must consider all relevant matters in deciding on the appropriate remedy, including

    a. the defendant’s awareness of the author or performer’s right to be identified or

    b. anything done by the defendant to mitigate the effects of the infringement.

24. Sir, this new right will help authors and performers gain recognition and build their reputation, particularly in the current online environment where works or performances may be very easily misattributed or in some cases, not attributed at all.

Granting creators default ownership of certain commissioned works

25. Another change, Sir, can be found in clause 133 of the Bill, which provides that creators will generally be the default copyright owners, subject to contract.

26. Today, creators of commissioned works like illustrations or text for corporate collaterals have default ownership of their works. However, creators of other commissioned works, in particular, photographs, portraits, engravings, sound recordings and films, do not have default ownership. In those cases, it is the commissioning party that owns the copyright by default.

27. This change therefore aligns the default position so that there will be no difference among the different types of commissioned works. For example, a photographer hired to take photos at an event would by default own the copyright to those photos he or she took.

28. While parties can continue to use contractual arrangements to adjust copyright ownership, this puts our creators in a better position before negotiations with the commissioning party commences.

Deterring people from profiting off products or services which stream audio-visual content from unauthorised sources

29. Next, for copyright owners of audio-visual content, like films and cable programmes, clauses 150 and 445(b) of the Bill impose civil and criminal liability on commercial dealers in hardware devices, software applications and services that facilitate access to unauthorised content.

30. Sir, during our public consultations, content owners had highlighted that devices which facilitate access to unauthorised versions of films and cable programmes were becoming more pervasive. They also had difficulty in utilising the existing provisions in the Copyright Act to enforce against the sellers of such devices.

31. We reviewed the situation and concluded that new liability provisions tailor-made for these situations, and taking into account future use cases, would be useful and would also provide clarity for the industry.

32. Thus, while the predominant issue today is with devices which facilitate access to films and cable programmes, the new provisions will also be broad enough to cover other types of content like books and songs, and other methods such as offering of services to install apps on existing hardware.

33. The change targets people who commercially profit off hardware, software and services which have only a limited commercially significant purpose or use, other than to facilitate access to copyright works communicated to the public without the authority of the copyright owners.

34. Acts of a commercial nature, such as commercial dealings by way of sale, offering for sale, distribution for the purposes of trade, will fall within the scope of the new provisions.

35. The new provisions are technologically neutral: it applies equally to acts in a brick-and-mortar setting, as they do to acts on online platforms. For example, liability is imposed on a retailer, whether in a physical shop or online, who knowingly sells a set-top box or other devices containing pre-loaded applications that provide access to streaming sites housing pirated content.

36. The new provisions do not impose liability on consumers and users of the hardware devices, software applications or services.

37. These new provisions provide copyright owners with specific remedies. They should utilise these provisions when enforcing their rights against commercial dealings in these devices, apps or services, instead of other liability provisions in the Bill that copyright owners may have previously sought to rely on in the past, in the absence of these specific remedies.

38. In tandem with the introduction of these specific remedies, we continue to encourage content owners to provide a broad selection of affordable, high-quality content to consumers, to attract them onto such platforms with legitimate content.

39. We also want to urge consumers to respect IP and consume legal offerings, so that we can incentivise creators to produce more quality content.

Provisions benefitting users and society

40. The second category of changes will increase the scope of permitted use of works and protected performances to benefit society at large, and I will turn to this now.

New permitted use of Internet materials for educational purposes by non-profit schools

41. First, let me highlight a change which helps in the use of works and recordings of protected performances for education. The use of Internet materials for educational activities has increased in importance over the years, and now, even more so, particularly in the context of the pandemic, with home-based learning and other online activities.

42. Clause 204 of the Bill creates a new permitted use of Internet materials for educational activities, including home-based teaching and learning conducted by non-profit educational institutions.

43. It is limited to Internet materials that are generally accessible to the public for free.

    a. So, for example, a teacher can include news articles or blog posts that are freely accessible on the Internet in lesson plans or homework assignments.

    b. The student, in turn, can use these materials for their projects or their assignments in school.

44. One condition is that the teacher or student must not knowingly use Internet materials which infringe copyright. If they unknowingly do so and subsequently receive a notification from the rights owner, then they must stop using the material. If the material has been communicated to the public, they must take reasonable steps to prevent further access to the material. And any further use of that material would not be allowed under this permitted use.

45. The limitation of this permitted use of free Internet materials allows our teachers and students to source from many different up-to-date sources without adversely affecting the incomes of the educational publishers who can continue to charge for their offerings.

Adjusting existing provisions for users with print disabilities

46. Another set of beneficiaries are the print-disabled, for example, the visually impaired, or those who cannot manipulate physical hard copy books.

47. In 2014, we passed certain provisions relating to the Marrakesh Treaty,

    a. a treaty concluded under the auspices of the World Intellectual Property Organization (WIPO),

    b. which seeks to facilitate access to copyright works for persons with print disabilities.

48. We have since received feedback from the users of these provisions.

49. In particular, the requirement to pay fees to rights owners when organisations help people with print disabilities convert works and protected performances into accessible formats was seen as making the conversion process even more expensive and time-consuming.

50. It also effectively charged persons with print disabilities twice, since they would have already purchased a copy of the work or the recording of the performance for the organisation to make the conversion.

51. Consequently, Division 4 of Part 5 of the Bill modifies the permitted uses relating to persons with print disabilities, to remove the obligation to pay fees to the rights owner when conversions are made and distributed.

52. The change supports the needs of the print-disabled community, and Singapore’s commitment to building a more inclusive society.

53. This also continues to be in line with Singapore’s international obligations under the Marrakesh Treaty.

New permitted use of works and recordings of protected performances for computational data analysis

54. Another change, Sir, is found in clause 244 of the Bill, allows the use of works and recordings of protected performances for computational data analysis.

55. To give Members an example, this permitted use can be relied on when training an Artificial Intelligence programme or using computers to analyse large databases of materials, without needing to seek permission from each rights owner.

56. It will apply in both commercial and non-commercial contexts.

57. However, the user must have lawfully accessed the relevant materials, for example, he or she should not have accessed the materials by circumventing a paywall.

58. This supports our Smart Nation initiatives, our push towards data-driven innovation, and Singapore’s efforts to grow our Artificial Intelligence and technology sectors.

Notice of Amendment

59. At this juncture, Sir, let me highlight that I will also be moving two amendments to the Bill, at its Committee stage, to correct a drafting omission in clauses 247 and 248. These clauses allow the use of sound recordings and recordings of performances under specified circumstances, subject to payment of equitable remuneration to the copyright owner. The amendments, Sir, replace the term “copyright owner” with the term “rights owners” in both clauses. The latter is a broader term that also includes persons who are entitled to bring an action for infringing uses of a performance. As the scope of the exception covers performances, the amendments ensure that there is a corresponding obligation to pay the rights owner of the performance.

Provisions strengthening the copyright ecosystem

60. Sir, the third category of changes strengthens the overall copyright ecosystem, and I will touch on these now.

New class licensing scheme for collective management organisations

61. Divisions 1 and 2 of Part 9 create a new class licensing scheme that sets minimum standards for how collective management organisations, or CMOs, operate.

62. CMOs are private organisations that represent groups of rights owners to grant licences to users. This is an efficient way for users to get licences from a large group of rights owners. So, for example, users often get licences from CMOs to play songs in public. The alternative would be for users to seek permission directly from the composer and the lyricist of each song.

63. Historically, CMOs have not been regulated. Over the years, we had received feedback from both rights owners and users regarding the behaviour of certain CMOs who, for example, refuse to give information on their repertoire or how they distribute royalties amongst their members.

64. In response, an arrangement was reached in 2012 for CMOs to self-regulate through a voluntary code of conduct. However, since then, for a variety of different reasons, the CMOs have ceased to apply this code of conduct.

65. Our public consultation in 2017 garnered feedback that the earlier concerns still remained relevant. Thus the need for some oversight of CMOs.

66. In this Bill, the new CMO regulatory framework will be administered by IPOS, the Intellectual Property Office of Singapore and will address issues of transparency, governance, accountability and efficiency.

67. It will not control the prices that the CMOs charge. In this regard, the Copyright Tribunals will continue to hear any disputes over questions surrounding the reasonableness of licensing fees.

68. IPOS, however, will be vested with powers to set licence conditions, investigate contraventions of licence conditions, and also impose penalties for non-compliance.

69. There are also safeguards to ensure the proper exercise of such powers, including the right of a CMO to appeal to the Minister in cases involving more severe penalties, such as where a CMO is ordered to cease its business.

Rationalisation of criminal offences

70. Let me now touch on the rationalisation of the criminal offences in this Bill. This Bill will also rationalise and update the existing criminal offences relating to works and protected performances. Part 8 of the Bill provides for these offences.

71. Offences are now categorised into those with a commercial element, which share the same higher penalty, and those without a commercial element, which attract a lower range of penalties.

72. The penalties reflect the severity of the different types of criminal activities, and will more effectively deter future acts of infringement.

Structure and language of the Bill

73. Finally, Sir, I want to speak briefly on the changes we have made to the structure of, and the language used in the Bill.

74. We have made three key changes in this respect.

75. First, the structure has been redesigned, overhauled, to improve the organisation of the legislation.

76. Second, we have taken the opportunity to ensure that the Bill is written in plain English, for ease of reading and understanding.

77. So, for existing provisions that have been rewritten in plain English, Section 9B of the Interpretation Act helps to clarify that such changes in style do not affect the meaning just because different forms of words have been used to express the same idea.

78. Third, we have included illustrations showing how certain provisions should be applied in common situations, to help rights owners and users understand their rights and obligations more easily. So, for example, clause 204, which permits the use of freely-accessible Internet materials for educational purposes, contains illustrations that will help teachers understand the scope of such permitted use.

79. Because copyright affects everyone, whether as a rights owner or user, these changes will make the Bill easier for all to understand.

Implementation

80. Sir, we intend to implement the majority of the Bill, if passed, in November this year.

81. The provisions on the licensing of CMOs, which Members will find in Division 2 of Part 9 and clause 507(4)(c), will be implemented later, after we further consult next year on the licence conditions for CMOs, which will be embodied in the subsidiary legislation.

Conclusion

82. Mr Speaker, let me now conclude.

83. At slightly over 320 pages, the Bill is a significant undertaking.

1. The responses we have received in our various public consultations, including the most recent one for the Bill itself, have been generally supportive.

85. Respondents tell us that the Bill meets its goal of responding to the challenges and opportunities of the current digital environment and also being easier to understand.

86. Importantly, this Bill will play its part in helping Singapore maintain our top-class intellectual property regime.

87. With that, Mr Speaker, I beg to move.