The Law on Art, Copyright, and Intellectual Property in Singapore (Part 3 - Performers’ Rights and Industrial Design Rights)
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 third in the series, focuses on performers’ rights and industrial design rights.
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.
Performers’ Rights
Rights in performances must be distinguished from copyright in the work which is the subject matter of the performance.
To illustrate, if Bach Tan composes a piece of music, and Yo-Yo Lee plays the work on the cello, the copyright in the musical work belongs to Bach Tan, and if Yo-Yo Lee gives a live performance of the work at a concert, this performance invokes Bach Tan’s right of performance in public and hence Yo-Yo Lee has to get a licence from Bach Tan. In relation to Yo-Yo Lee’s live performance, however, a separate right may arise which is independent of Bach Tan’s copyright in the musical work (i.e. right in the performance or performer’s rights which belong to Yo-Yo Lee).
Thus, Singapore’s Copyright Act also provides for rights pertaining to “protected performances”, which are limited to performances of dramatic works (including improvisation) or musical works, readings, recitation or delivery of literary works, performances of dance, performances of a circus or variety act, or similar presentation or show.[1]
A person would make infringing use of such performance if he or she[2] does any of the following without the rights owner’s authority:
a. recording, communicating or otherwise causing the performance to be seen or heard by the public while it is live;
b. making a copy of a recording of the performance;
c. publishing a recording of the performance for the first time;
d. making a recording of the performance available to the public in a way that it may be accessed by any person on demand;
e. dealing commercially with a recording of the performance.
The remedies for breaches of rights in protected performances are similar to those for breach of copyright.
Performances enjoy protection as set out above for a duration of 70 years from the date of the performance.
Industrial design/design rights
There is also a specific protection regime for ‘designs’ under Singapore’s Registered Designs Act (“RDA”). A design generally refers to features of shape, configuration, colours, pattern or ornament applied to a manufactured article or non-physical product that gives the article or product its appearance.
The RDA however only protects new designs which have not been used or published anywhere in the world, which must be registered for protection.[3] This distinguishes design rights from copyrights, which are automatic without the requirement for registration.
The registration of the design gives the exclusive right to (amongst other things) make for commercial purposes, an article bearing the registered design or one which is not substantially different from the registered design.[4] Any other person who commits such acts will be treated as having infringed the owner’s rights and will be subject to infringement proceedings which can include the reliefs of an injunction, damages or an account of profits.[5]
There is however an overlap between copyright and RDA protection, and a design may therefore also enjoy copyright protection as an original artistic work. In such a situation, Sections 272 and 274 of the Copyright Act disapply copyright protections in favour of RDA protections in respect of such works. This disapplication would only occur if the design was in fact registered under the RDA, or if the design could have been registered under the RDA and was applied industrially without having been so registered.
Under the RDA, the owner of the design is generally taken to be the designer. However, where a design is created by an employee in the course of his or her employment, his or her employer is to be treated as the owner of the design, unless agreed otherwise between employer and employee.[6] The protections under the RDA generally last for 5 years but can be renewed for subsequent two periods of 5 years, bringing the total period to 15 years.[7]
If you require any legal advice regarding intellectual property, our experienced team will be glad to assist you. Kindly contact us here.
Sources
Section 37 Copyright Act.
Sections 175 to 176 Copyright Act.
Section 5 RDA.
Section 30 RDA.
Section 36 RDA.
Section 4 RDA.
Section 21 RDA.