A new Copyright Bill, which has been in the works for five years, was introduced in Parliament for the first time on July 6, 2021, and is scheduled to become law in November, 2021. The bill overhauls the current Copyright Act and adds a number of additional rights and exceptions. Some of the changes will affect firms more than others.
In this article, we’ll look at four significant changes that are projected to have the greatest influence on organizations’ day-to-day operations, explain what they mean in practical terms, and offer advice on how to deal with the changes’ issues.
Key Change #1: Creators and performers will have a new right to be identified
In a nutshell
When their work or performance is used, creators and performers will be given a new right to be identified. “Clear and reasonably visible” identification is required. The identification must also appear on each copy of the work or performance, or if that is not possible, it must be prominent enough for a person purchasing a copy to notice it. If there are many creators or performers, each one must be identified separately. If the inventor or performer is unidentified, however, there is no need to identify them. In the event of works created in the course of employment when the employer is the first owner of copyright; and performances delivered for the purpose of advertising any goods or services, there is also no need to identify (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).
The right to be identified will not extend to any act permitted by virtue of a copyright assignment or license for works created before the Bill is passed. In other words, works that are controlled by current agreements remain unaffected. The right will not apply to acts given prior to the passage of the bill.
What this mean
For example, if a company engages an artist or writer to create content for its marketing campaign, when using the content online or in any direct marketing material, it is necessary that the artist or author is identified (e.g., magazines, print ads and fliers). This can lead, for example by spatial constraints, to practical difficulties, especially where there is a long list of joints or the products contain numerous different components with each different creator (e.g. text, artwork, music). In addition, the identification of “clear and reasonably prominent” seems to depend on the context and circumstances of its use.
Practical tips
If it is necessary or desirable to remain anonymous:
– One option is to request that the creator or performer waive his right to anonymity – either generally, whenever the work or performance is used, or in particular instances. Any waiver must be written down and signed by the creator.
– When working with a design agency, there is no need to identify the creator if he or she is an employee of the agency and the copyright is owned by the agency. However, if it
is not certain in this case, the best course of action is to request a waiver from the creator.
Key Change #2: Creators of certain works will be the default owner of the copyright
In a nutshell
Photographers, portrait artists, engravers, sound recordists, and cinematographers will automatically be the copyright owners of their works. Even if the works are commissioned by a customer. Contracts can be used to change the position.
What this means
For example, if a company hires a photographer to take photos at an event, the photographer will automatically own the copyright to the photos. If the company wants to own the copyright in the photographs (for example, so that it can use them in its annual reports and publicity materials), it must obtain an assignment from the photographer. Notably, this is already the case for authorial works in general under the current Copyright Act.
Practical tips
– If a business wants to own the copyright in a work that it commissions, it must acquire an assignment from the creator.
– It should be noted that in the circumstance where an individual is caught in a photograph or film, agreement from that individual may be required for any use of the work to comply with data protection rules, regardless of whether the copyright belongs to the creator or the customer.
Key Change #3: A new copyright exception for the use of works for computational data analysis has been added.
In a nutshell
This is known as the “data mining exception.” Computational data analysis is defined as including:
(i) using software to find, retrieve, and analyze data from a work or a performance recording
(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 work or recording must be accessed legally by the user. The user must not know if the work that has been accessed is an infringing copy. If the work is removed from a “flagrantly infringing on-line location” (“FIOL”), a user may not have known or had reason to think that the work accessed was an infringing copy. (“FIOL”) The work shall be taken away by the user. This exception may not be excluded by contract or amended.
What this means
This provision will apply to all works which are made available free of charge. For instance, a company that makes a library of photos available on its website cannot prevent the use of images for the analysis of computer data. This is even the case if the terms of use of the website
prohibit the use of images. Furthermore, if a third party reposts the work on his own website without permission, without the user being aware that it’s an unauthorized copy, the exemption would still apply.
Practical tips
– The exception applies only if there is legal access to the work. Two illustrations are provided in the Bill as to when access is illegal, i.e. when access is by bypassing the paywall or in violation of database usage terms. Therefore, if the company wishes to avoid using its work that is published online for the analysis of computational data, it must put its work behind a paywall. Once the data miner complies with any terms of access (e.g. subscription signing and/or payment) to a job, the data miner is entitled to use the work for computer analysis even if it is prohibited by the terms of its use.
– If it is discovered that the user has accessed an unauthorised copy of the material (for example, from a third-party website), he should be told right away. The exception will no longer apply once the user has gained this knowledge.
– Businesses that want to employ works for computational data analysis, on the other hand, must be aware of the requirement for legitimate access to the work. The work should not be used if the firm becomes aware – either at the moment of access or afterwards – that it is dealing with an unauthorized copy. Furthermore, extra caution should be exercised if the work is taken from a website that is known to be a FIOL. Because if the website is determined to be a FIOL, the exception will not apply unless the copyright owner can demonstrate that the user should have known that the copy of the work made available on the website is an infringing copy.
Key Change #4: Exceptions that cannot be limited by contract
In a nutshell
The Copyright Act contains a variety of exceptions that are not bound by the contract. Additional exceptions will be added to this list, including the “data mining exception.” Furthermore, all other exceptions may be limited or excluded by contract only if (i) the contract is individually written – that is, it is not a standard form contract (e.g., an EULA); and (ii) the restrictive term or condition meets the reasonableness criteria. A set of factors outlined in the Bill will be used to assess whether the phrase is “fair and reasonable.”
All contracts – including agreements that have been previously implemented but which can be relied on for only acts performed following the passing of the Bill – shall be subject to these rules. In addition, these provisions are applicable even to foreign-law contracts where either (i) foreign law choices are made wholly or primarily in order to avoid any copyright exception; or (ii) the counterparty is a consumer resident in Singapore at the time of the contract and the essential steps have been taken in Singapore.
What this means
This is a significant change from the current situation, in which contracting parties may freely agree to exclude or modify the operation of any copyright exceptions, except for specific exceptions – most notably exceptions that permit the backing up, decompiling, observing, studying, and testing of a computer program. Apart from the increased list of exceptions that
cannot be contracted out of, a company’s capacity to omit or amend any other copyright exceptions will be limited as well:
– For contracts that are individually negotiated, any term that purports to exclude or amend a copyright exception will be void unless it is “fair and reasonable”. The respective bargaining positions of the parties are one of the elements used to determine this. In a business-to-consumer (B2C) setting, proving that any word satisfies the criterion may be more difficult.
– For standard form contracts, it will no longer be able to exclude the operation of any copyright exceptions, whether in a business-to-business (B2B) or business-to-consumer (B2C) setting.
Practical tips
– Businesses should examine their existing contracts for any conditions that purport to exclude or modify the functioning of copyright exclusions. Once the Bill is adopted, any such terms may no longer be valid.
– Virtually all restrictive terms can only be called into question if the counterparty is sought. As such, no strict requirement exists to modify existing contracts in order to remove restrictive terms, provided that the company is prepared not to comply with those terms. Nevertheless, a business may wish to reassess its value proposal and consider whether it should take account of it and/or rewrite the terms of its products and services.
– The factors to determine whether or not a restrictive term is ‘fair and reasonable’ should be borne in mind during negotiations when negotiating contracts in the context of a copyright perspective, in order to increase the chances that restricted terms are upheld. The following factors include: (i) relative negotiating positions of the parties; (ii) whether the counterparty was inducted to agree to the restrictive term (or had an opportunity without a similar term to be concluded without persons; and (iii) whether the counterparty knew or would have known whether the term of the limitation exists and is not applicable.
– On the other hand, companies who are users of articles sued for infringement of contracts and/or copyright can consider whether their activities that they complain could fall under an exception of copyright (e.g., fair use). In that case, it could be questioned whether the contractual terms prohibiting the activity are valid and enforceable on the basis that they seek impermissibly to exclude the exception or amend it.
Other Changes
Aside from the modifications mentioned above, the Bill will also bring about the following changes:
– The “fair use” exception is being reclassified.
– Limiting the time that unpublished works are protected by copyright
– Creating a new exception for the use of resources made freely available online for educational purposes by non-profit educational organizations.
– Adding new or amending existing exceptions for galleries, libraries, archives, and museums, as well as print-disabled users and official government records.
– Creating a new right for sound recording firms to earn fair remuneration when their recordings are aired or played publicly.
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