The Law on Art, Copyright, and Intellectual Property in Singapore (Part 2 - Copyright)
by Ronald JJ Wong and Stuart Peter
Who owns rights to IP? How can they be used? Director Ronald JJ Wong and Associate Stuart Peter explore some of these questions and issues, along with possible case studies in a four-part series on the creations of the mind. This article, the second in the series, focuses on copyright.
How something is treated as intellectual property (“IP”) under the law depends on the form it takes. Tangibly expressed works, inventions, designs, goodwill and/or trademarks are all treated differently under the law and governed by different laws and regulations.
Copyright
Copyrights are ownership rights conferred in respect of tangibly expressed works. One of the main aims of copyright is to incentivise the creation and dissemination of new works by giving authors, artists, musicians, performers, photographers, and other creators the exclusive right to control specific uses of their works for a limited period of time. Copyright in Singapore protects the following types of material (the “Copyrighted Materials”):
a. literary works (e.g. books, articles in journals or newspapers, lyrics in songs, source codes of computer programs);
b. dramatic works (e.g. scripts for films or dramas (as applied), choreographic scripts for shows or dance routines);
c. musical works (e.g. melodies);
d. artistic works (e.g. paintings, sculptures, drawings, engravings, photographs, buildings or models of buildings, works of artistic craftsmanship such as designer furniture that is not mass produced);
e. published editions of literary, dramatic, musical, or artistic works (e.g. typographic arrangements of a published work);
f. sound recordings (e.g. podcasts, music, or audiobooks contained in a digital file);
g. films (e.g. movies or videos);
h. television and radio broadcasts (i.e. broadcasts by way of television or radio); and
i. cable programmes (i.e. programmes (visual images and sound) included in a cable programme service sent by means of a telecommunication system).
Copyrights are “automatic” in the sense that there is no need for registration/compliance with formalities in order for these rights to apply. They come into force on the creation of the work as long as they fall under the aforementioned categories of Copyrighted Materials set out in the Copyright Act.
The copyright generally grants the owner exclusive rights to reproduce, publish, perform, communicate and/or adapt his or her work.
Under Singapore’s Copyright Act, the owner of copyrights to the Copyrighted Materials is by default the maker of the work, i.e. the author in the case of literary, dramatic, musical or artistic works and the publisher in the case of published editions of literary, dramatic, musical or artistic works.[1]
Notably, the new Copyright Act, which came into effect on 21 November 2021, specifically amended the law such that makers would by default own the copyright to commissioned works, unless agreed otherwise in writing.
However, where the material is created in the course of employment, then by default the owner of the relevant work is the employer of the maker.[2] Note that an employee is different from an independent contractor or service provider.
Case study:
A company engaged a photographer for an event, to take photographs to be used in the company’s promotional and marketing material, including its website and corporate collaterals. The company’s representative and the photographer negotiated the fee and confirmed other details such as the duration of the event and the number of photographs to be provided to the company via email. The photographer sent over a written quotation which was accepted by the company. There was no mention in the email or the terms and conditions of the quotation as to copyright ownership of the photographs.
Under the new Copyright Act, the photographer will by default own the copyright to the photographs taken at the event (since he is not an employee and the work was not created in the course of employment with the company). While the company may use the photographs for the purposes for which they were commissioned, the photographer as the copyright owner may use the photographs for his own purposes, such as for his commercial portfolio. He may even licence or sell copies of the photographs to others. However, if any of these photographs contain images of persons such that they will be considered personal data, he must observe the obligations as to the use of such personal data under the Personal Data Protection Act.
If the company had wanted to own the copyright in the photographs so that it may use them for any other purpose, then it should have negotiated with the photographer and amended the terms and conditions of the quotation to record this agreement in writing. This may involve paying the photographer a higher fee for the copyright. If the photographer agrees that the company will own the copyright to the photographs, the photographer would also have to negotiate for any use he intends to make of the photographs (e.g. to include them in his commercial portfolio).
(1) Infringement of copyright
Under the law, an owner of copyright is protected from acts which infringe the copyright, which include:
a. committing acts that the owner is exclusively entitled to do as copyright owner (such as adaptation, reproductions, communications and publications) without a valid licence,[3]
b. dealing commercially with an article consisting of copyrighted material,[4] and
c. facilitating access to copyrighted materials by way of devices or services without the owner’s authority (e.g. android boxes or streaming sites).
The owner of the copyright can bring a claim for copyright infringement against the alleged infringing party in court.
The remedies for an infringement action may include the following:[5]
a. Obtaining an injunction (i.e. a court order restraining the infringing party from committing any further or similar acts);
b. Damages (i.e compensation for losses suffered), an account of profits (i.e. recovery of profits enjoyed by infringing party) or statutorily prescribed damages;
c. A delivery up order (i.e. infringing party to ‘deliver up’ infringing material to the rightful owner); and
d. A disposal order (i.e. infringing party to ‘dispose of’ infringing material).
(2) Permitted uses
However, there are permitted uses of copyright materials which will not qualify as infringement even if meeting the criteria set out above.[6] These include but are not limited to:
(a) Fair use: There is no exact definition to this, but the following considerations will apply in determining if the use of the material constitutes fair use: (i) the purpose and character of the use, including whether the use is non-commercial or for non-profit educational purposes; (ii) the nature of the work; (iii) how large a portion of the work has been used; and (iv) the effect of use upon potential market or value of the material.[7]
(b) Where the materials are being made use of for educational purposes of an educational institution (subject to certain additional requirements imposed by Singapore’s Copyright Act, e.g. free to access and not paywalled, citation of the source, acknowledgment of material, accessible only to network of the educational institution, etc.);[8]
(c) Computational data analysis: copying of copyright works for such analysis e.g. text and data mining, sentiment analysis, training machine learning is permitted, subject to conditions. These include that the user must have lawful access to the works in the first place and cannot circumvent e.g. paywalls;[9]
(d) Where materials are copied or reproduced in formats intended to make them accessible to persons with print disabilities (e.g. Braille version for blind people) or intellectual disabilities;[10]
(e) Museums, galleries, libraries and archives are permitted to make copies or publicly perform audio-visual materials that are already in their public collection for the purpose of the exhibition (subject to certain conditions);[11]
(f) Films depicting historical events: Showing a film in public if that film wholly or mainly consists of images which were means of communicating news and 50 years have passed since the end of the year during which the main events depicted in the film occurred; and[12]
(g) Acts done by the Government or persons authorized by the Government for the service of the Government, subject to agreed terms with the copyright owner.[13]
(3) Moral rights
In addition to the copyrights above, authors and performers under the new Copyright Act also enjoy “moral rights”,[14] which broadly include:
a. the right to be identified as the author of the work when the work is published, performed, communicated or otherwise shown to the public;
b. the right to ensure that other persons are not falsely identified as authors of the author’s works;
c. the right not to be falsely identified as the author of a copy of an artistic work where the copy had not been made by him or her; and
d. the right not to have an altered copy of the author’s work represented as having been unaltered when published, dealt with commercially or otherwise distributed.
(4) Overseas protection of copyrights [15]
Copyright protections are generally territorial, meaning that Singapore’s Copyright Act generally protects copyright arising in Singapore only within its own borders.
However, copyright protection under the Copyright Act also extends to countries designated as ‘reciprocating countries’ under the Copyright Act. These are countries that are party to the Berne Convention for Protection of Literary and Artistic Works or members of the World Trade Organisation.
(5) Measures to protect copyright
It is common practice for authors and publishers to affix a copyright notice (e.g. © [year of publication] [name of author]) on their works.
While these will not serve as conclusive as to ownership, they will enable the author to rely on legal presumptions[16] that it is the owner of the copyrighted works or materials.
It is therefore important for authors/creators and publishers to have their names clearly affixed or stated on their works and publications.
Common questions relating to copyright
Q1. Can you use part of someone’s work if you change the work?
The short answer to this question is no. As above, an owner of a copyright is protected from acts which infringe the copyright, which include committing acts that the owner is exclusively entitled to do as copyright owner (such as adaptation, reproductions, communications and publications).
Before going further into this, it must be emphasized that in order for infringement to be found under the law, there must be a causal connection between the copyrighted work and the alleged infringing work.
Thus, for example, if you as an author, created a work similar to existing work by mere coincidence, and without actually copying the existing work, then copyright infringement would not be said to have occurred, and the existing work’s author would need to prove actual copying and access to his/her work in order to make out a claim for infringement.[17] In order to do so, original authors sometimes insert “fingerprints” or “seeds” consisting of errors or irrelevant points of detail in their work as a means of detecting copying. The existence of these in the subsequently produced work is accorded significant weight in proving copying since the likelihood of these being produced by independent design / without reference to the original work is extremely low.[18]
Coming back to the issue of using part of a work and changing it, the general position under Singapore law is that a work can still constitute an infringing work even if it is not a replica of the copyrighted work, as long there is a “substantial taking” of the copyrighted work in question.
Here, the Court is faced with the question: which part of the claimant’s work is alleged to have been used, and does this part constitute a “substantial part” of the claimant’s work?[19] This is a question of fact and degree and considers the quality rather than quantity of what has been copied. Thus, even if only a small portion of the work has been copied, but that portion is qualitatively significant to the work as a whole, this would still be treated as a substantial taking and thus an infringement if no licence was obtained from the author.[20]
There are several factors that the Court will consider in determining if there has been a substantial taking.
First, the simplicity of the copyrighted work. In determining whether there has been “substantial taking”, the court will take into account the nature and degree of originality of the copyrighted work. The simpler the alleged copyright work, the closer the resemblance between it and the alleged infringing work has to be in order for infringement to be found.[21] Thus, where a copyrighted work was simple and obvious, a slight change has been treated as sufficient to prevent an infringement from arising.[22]
Second, the functional objective of the copyrighted work. If the changes made to a particular copyright work are essential to the intended functional objective of the work (especially so in relation to product design), then such changes will not be treated as inconsequential or cosmetic, and serve as factors weighing against a finding of substantial taking. This is especially so where the copied elements are simple and obvious in light of the functional objective of the copyrighted work.[23]
Third, in respect of literary work consisting of compilations, the selection and arrangement of contents. In John Robert Powers School, the claimant alleged copyright subsisted in its ‘Voice Communication’ manual which was used in its voice elocution training course. The manual comprised a compilation of two extracts from Shakespeare’s plays and three poems by other authors, as well as the claimant’s notes on pronunciation. The defendant’s manual contained four of these extracts/poems, but not the claimant’s notes on pronunciation. The Court found that in taking these extracts from the claimant’s manual, the defendant had not substantially taken from the claimant’s copyright work. This was because the ‘essence’ of originality of the claimant’s compilation lay not in the choice of the extracts/poems, but in the manner in which they were arranged (i.e. the sequence in which the claimant’s clients were to work through the extracts/poems with the guidance of the claimant’s notes). Since this arrangement had not been taken by the defendant, it was held that the threshold of substantial taking had not been met.[24]
Q2. Can I use the image/likeness of a person in my artwork without their permission?
This issue can arise where for example, a model’s face is used by an artist in her work without her permission. This is not an issue covered by copyright, which would only cover e.g. the use of a photograph taken by a photographer, but not the rights of a model to protect his/her own image from being used by others. In other countries such as the U.S, there is a concept known as personality rights that generally protect against the unauthorised publication of one’s private information and commercial exploitation of aspects of one’s persona. Similar concepts do not however exist in Singapore at the current juncture.
There is a possibility for a person of significant public stature to, however, have an action in passing off against persons using his image or name for the purposes of endorsements and/or merchandising without his permission. However, such a person must be able to show that he/she there has been a misrepresentation by the alleged wrongdoer which misleads the public into thinking that goods or services are in some way associated with him/her. For example, in Irvine v Talksport Ltd [2002] FSR 60,[25] Talksport operated a radio station which had rights to cover the Formula 1 Championship; they produced promotional materials with an image of Eddie Irvine, a famous F1 driver, holding a portable radio, and the words “Talk Radio” on it; the image was created by substituting the mobile phone Irvine was holding in the photograph for a portable radio. Here, there was no question of copyright infringement because the right to use the photograph had been purchased from a photo agency. Irvine thus sued for passing off and was successful, as the judge was satisfied that (1) Irvine had celebrity status as an F1 driver, and had been engaged to sponsor various other products as a result and (2) the use of his image by Talksport had generated the false impression that Irvine had an endorsement deal with Talksport.
Further, there are considerations of personal data protection that arise in such a situation. This is because an image of an identifiable individual captured in a photograph or video recording is personal data about the individual.[26] Even an audio recording may comprise personal data if an individual can be identified from that audio recording.
Accordingly, it is possible that in certain circumstances, the use of such an image would constitute the use of personal data, for which consent of the subject would be required under the Personal Data Protection Act. A contravention of this requirement may entitle the person who suffered loss or damages resulting therefrom to a right of action for relief in civil proceedings in Court, for which they could obtain an injunction, declaration, damages or such other relief as the Court deems fit.[27]
Q3. Does copyright protection last forever?
Copyright protection does not last forever, and lasts for time periods stipulated under the law that is deemed sufficient to incentivize creation without limiting the ability of others to subsequently work with and on, and learn from such works.
a. Copyright in literary, dramatic, musical or artistic work (i.e. authorial works) generally lasts for a period of 70 years after the end of the year in which the author dies.
b. For published editions of authorial works, copyright instead expires 25 years after the end of the year in which the edition is first published (i.e. the rights of the publisher last for only 25 years from publishing).
c. For sound recordings, copyright protection last 70 years from when the recording is first published;
d. Copyright in a film expires 70 years after the end of the year in which the film was published;
e. Copyright in broadcasts expire 50 years after the end of the year in which the broadcast is made – a repeat broadcast will also enjoy the copyright protection for the period of 50 years starting applicable to the first broadcast; and
f. Copyright in cable programmes expire 50 years after the end of the year in which the cable programme is first included in the cable programme service.
When copyright protection ceases, the work may be lawfully used, adapted, published, amended, etc. Such works are often referred to as “public domain works”.
If you require any legal advice regarding intellectual property, our experienced team will be glad to assist you. Kindly contact us here.
Sources
Section 133 Copyright Act.
Section 134 Copyright Act.
Section 146 Copyright Act.
Sections 147 and 148 Copyright Act.
Section 305 Copyright Act.
Section 183 Copyright Act.
Section 191 Copyright Act.
Sections 195 to 205 Copyright Act.
Sections 243-244 Copyright Act.
Section 206 to 220 Copyright Act.
Section 221 to 236 Copyright Act.
Section 249 Copyright Act.
Sections 284 to 286 Copyright Act.
Sections 369 to 407 Copyright Act.
Section 3 Copyright Act.
Sections 163 to 171 Copyright Act.
Llewelyn, Cases, Materials and Commentary on Singapore Intellectual Property Law (Academy Publishing, ) at [04.153] – [04.154].
Llewelyn, Cases, Materials and Commentary on Singapore Intellectual Property Law (Academy Publishing, ) at [04.156].
Law of Intellectual Property of Singapore (2014, Sweet & Maxwell, 2nd Ed) at [10.1.21].
Law of Intellectual Property of Singapore (2014, Sweet & Maxwell, 2nd Ed) at [10.1.22].
Llewelyn, Cases, Materials and Commentary on Singapore Intellectual Property Law (Academy Publishing, ) at [04.167].
Law of Intellectual Property of Singapore (2014, Sweet & Maxwell, 2nd Ed) at [10.1.23] – [10.1.24].
Flamelite (S) Pte Ltd and others v Lam Heng Chung and others [2001] 3 SLR(R) 610 at [46]-[48].Section 133 Copyright Act.
Law of Intellectual Property of Singapore (2014, Sweet & Maxwell, 2nd Ed) at [10.1.26].
Law of Intellectual Property of Singapore (2014, Sweet & Maxwell, 2nd Ed) at [18.4.13]-[18.4.14].
Personal Data Protection Commission Singapore, Advisory Guidelines on the PDPA for Selected Topics (Revised 4 October 2021) at 4.2.
Personal Data Protection Act 2012, Section 48O.