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Public Consultation on the Proposed Amendments to the Copyright Act

Consultation Period:
to

A.           Introduction

1.            Online piracy is a global issue.  According to studies commissioned by rights holders, there is a high level of consumption of online copyright infringing (“pirated”) content in Singapore.  This adversely affects Singapore’s creative sector and the livelihoods of people working in these industries.  It also undermines our reputation as an economy that respects the protection of intellectual property.

2.            In 2012, the Media Convergence Review Panel[1] (“MCRP”) had recommended a multi-pronged approach to address online piracy, comprising (a) public education, (b) the promotion of legitimate digital content services, and (c) the adoption of appropriate regulatory measures.

3.            The Government agrees with the MCRP’s recommendations.  The Intellectual Property Office of Singapore reaches out to the public to raise awareness about IP creation and protection, through the Honour Intellectual Property (HIP) Alliance and other platforms.  We have also been encouraging rights holders to increase the availability of legitimate digital content in Singapore, so that consumers are able to access such content conveniently and at reasonable prices. 

4.            To complement these measures, the Ministry of Law is proposing legislative amendments to enable rights holders to protect their rights more effectively against pirate websites through judicial measures.  The proposal is outlined below.

B.           Summary of Proposal

Background


5.            Presently, rights holders can issue a “take-down” notice to a network service provider (“NSP”) or internet service provider (“ISP”) to request that it disables access to or removes copyright infringing material from its network.  However, this mechanism has not been effective. 


6.            ISPs have tended to comply with the notices only if they wish to avail themselves to “safe harbour” provisions that would indemnify them against certain copyright infringement liabilities. 


7.            If ISPs do not respond to a take-down notice, rights holders will need to sue the ISPs for copyright infringement and seek an injunction against ISPs to disable access to or remove the copyright infringing material from their network.  However, the feedback received is that rights holders have not pursued this avenue because there is uncertainty due to disputes of fact that may arise during the trial (e.g. when establishing the liability for infringement). 


Proposed alternative to existing judicial avenue


8.            We are thus proposing amendments to the Copyright Act to simplify the judicial process and allow rights holders to protect their copyrights more effectively against websites whose primary purpose is to offer infringing content. 


9.            Under the proposed legislative changes, rights holders will also be allowed to apply directly to the Courts for injunctions to prevent access to pirate sites without having to first establish ISPs’ liability for copyright infringement.  This judicial process is more efficient and avoids implicating the ISPs unnecessarily.


10.         This is targeted at websites that show a blatant disregard for, and that clearly infringe, copyrights.  Legitimate search engines and content sharing sites such as Google and YouTube will not be affected.  Countries such as the UK, Norway and Belgium have adopted similar legislation and have issued injunctions for their ISPs to block sites like The Pirate Bay.


11.         All applications for injunctions must be made by rights holders or their exclusive licensees to the Courts.  They will be reviewed by the Courts in an objective and transparent manner.  ISPs will be provided the opportunity to present their case if they wish, and rights holders will also need to undertake reasonable efforts to notify the website owner.   

Alternative approaches considered


12.         Countries like Spain and Malaysia have implemented an administrative site-blocking approach where rights holders can apply for site-blocking orders from a Government-appointed body.  Countries like France have introduced a “graduated response” system where individual internet users are notified of their infringing activity by the ISP, and can be penalised if they continue their infringing activity despite repeated notifications (or “warnings”).     

13.         We considered the alternatives above but assessed that they may not be suitable in Singapore’s context as they are too intrusive on internet users.



C.          
Key Implementation Details


Standing / Eligibility to Apply for an Injunction


14.         In line with the existing position in the Copyright Act, only the rights owner or the exclusive licensee of the work will be able to apply for injunctions in the High Court to prevent public access to copyright infringing material on the internet.  This will ensure that rights ownership is clearly established prior to application, and provide a fair balance of rights under the Copyright Act.  This position is also in line with existing UK and EU practices.


Definiton of an "egregious" online location


15.         Our intent is to target online locations which clearly and flagrantly infringe copyright, and not search engines, e.g. Google or Yahoo, or websites based primarily on user-generated content, e.g. YouTube.  In determining whether an online location is clearly and flagrantly infringing copyright, the Court shall consider certain non-exhaustive factors, such as: 


(a)  Whether the online location’s primary purpose is to commit or facilitate copyright infringement.


(b)  Whether the online location makes available, and/or contains directories, indexes or categories of, the means to commit copyright infringement.


(c)  Whether the owner of the online location demonstrates a disregard for copyright.


(d)  Whether access to the online location has been disabled by orders from the courts of other countries on grounds of or related to copyright infringement.


(e)  Whether the online location contains guides or instructions on circumventing measures that disable access to the online location.


(f)   The number of visitors to the online location.


16.         These factors will provide a reasonable indication of whether an online location flagrantly infringes copyright.  These factors were developed with reference to jurisprudence arising from rights holders’ applications in the UK High Court requesting ISPs to block pirate sites.


17.         The term, “online location”, is meant to capture all manner of pirate internet sites, including sites whose primary purpose is to provide video streams of infringing content or access to infringing content on peer-to-peer networks.


Avenue for Appeal


18.         The applicant of the injunction to block an online location, the ISP(s) and the owner(s) of the online location will be able to appeal to the Court of Appeal against the decision of the High Court, as allowed under existing court procedures for other disputes. 


Duration, variation and revocation of the injunction


19.         The injunction is proposed to be permanent.  The site owners, ISPs or rights holders can apply to the Courts to overturn an injunction, and the Courts will decide on such applications based on merit.


20.         It is also proposed that the Copyright Act be amended to allow an applicant to more easily obtain another injunction or to vary the original injunction if the original website has assumed a different IP address or URL.  Affected parties will be informed of such subsequent applications, and will have the opportunity to contest them if they wish.


D.          
Invitation for Feedback


21.         MinLaw invites interested parties to provide their feedback on the proposed Bill.  The consultation period is from 7 to 21 April 2014.  The public can view the draft Bill in the Annex A below. The feedback may be sent in electronic or hard copy form to the address below:

Intellectual Property Policy Division

Ministry of Law

100 High Street

#08-02, The Treasury

Singapore 179434

Fax: 6332 8842

E-mail: [email protected]


[1] The MCRP was appointed by the Government in March 2012 to study the issues impacting consumers, industry and society in the converged media environment and to put forth recommendations on how to address such challenges.  It was chaired by Mr Koh Boon Hwee, Chairman, Board of Trustees, Nanyang Technological University, and comprised prominent individuals from the business, media and technology, telecommunications and legal sectors, representing a diversity of expertise, views and interests.  


Annex A - Copyright Act Amendment Bill 2014

Last updated on 07 Apr 2014