Draft Singapore Copyright Bill Proposes Significant Innovations
Singapore’s Ministry of Law and Intellectual Property Office have released a draft of a Copyright Bill that will repeal and replace Singapore’s current Copyright Act later this year. The draft bill includes innovative provisions such as an exception for text and data mining and a prohibition on restricting certain exceptions by contract. Additionally, the draft bill simplifies the existing fair dealing provision to more closely track the fair use right in the U.S. Copyright Act.
The Review Process
Singapore has been reviewing its copyright law since 2016. It held public consultations on various proposed amendments in 2016 and 2017, and then published a report setting forth recommendations in 2019. The draft bill implements the 2019 report’s recommendations. In its request for views on the draft bill, the Singapore government has made clear that it is not seeking comments on the policy positions set out in the 2019 Report. Rather, the consultation inquires whether the draft bill appropriately implements the changes recommended in the 2019 Report.
The draft bill attempts to use “plain English” out of a belief that the “copyright regime should be clear and accessible so that creators, users, and intermediaries will understand how the law works to both protect and provide access to works.” It also uses “technology-neutral language” in order “to be sufficiently broad to cater to modern technologies while being flexible enough to continue applying to emerging technologies in the digital age.” The draft bill streamlines the existing law to eliminate unnecessary duplication. It consolidates exceptions to “facilitate the easy location and comparison of relevant exceptions.” It also introduces new exceptions.
Text and Data Mining
Perhaps the most innovative new exception allows the reproduction of works for the purpose of computational data analysis. Computational data analysis with respect to a work is defined in Clause 232 to include “using a computer program to identify, extract and analyse information or data from the work” and “using the work as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data.” Clause 233(3) clarifies that reproduction includes storing or retaining the reproduction. Further, Clause 233(2)(c) permits the communication of a reproduction to another person for the purpose of “verifying the results of the computational data analysis” or “collaborative research and study relating to the purpose of the computational data analysis.”
Significantly, the exception applies to text and data mining for both commercial and non-commercial purposes. In this respect, this exception is far more useful for the expansion of artificial intelligence than the text and data mining exception in the EU’s Directive on Copyright in the Digital Single Market, which permits commercial text and data mining only if the rights holder does not opt-out.
Prohibition on Contractual Restrictions
The draft bill expands the list of exceptions that may not be restricted by contract. Singapore’s current Copyright Act voids any contract term that purports to restrict the backing-up or the reverse engineering of a computer program. To this list, the draft bill in Clause 180 adds the exceptions for: text and data mining; galleries, libraries, archives, and museums; other uses of computer programs; and judicial proceedings or professional advice. These exceptions and mandatory and cannot be excluded or restricted by contract under any circumstances.
All other exceptions may be restricted or excluded by contract, but only if the contract is individually negotiated and the term purporting to restrict the exception satisfies the requirement of reasonableness. The draft bill in Clause 179 sets forth the relevant factors in deciding whether a term of a contract is fair and reasonable: (a) the strength of the bargaining positions of the parties relative to each other, (b) whether the party could have entered into a similar contract with another person, but without having to accept a similar term; (c) whether the party knew or ought reasonably to have known of the existence and extent of the term; and (d) whether at the time of the contract it was reasonable to expect that the contract is workable without the term.
The draft bill in Clause 181 voids any contract term that applies the law of a country other than Singapore if the one of the parties is a consumer residing in Singapore or if the term was imposed for the purpose of evading the operation of a permitted use. Further, these prohibitions on contractual restrictions apply retroactively to contracts already in existence.
In short, the draft bill is extremely protective of the exceptions it establishes against efforts by rights holders to restrict them.
The existing Copyright Act sets forth five factors to be considered when determining whether a use is a permitted “fair dealing.” The first four factors are based on the four factors of the fair use right in the U.S. Copyright Act, 17 U.S.C. § 107. The fifth factor is “the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price.” The 2019 report found this fifth factor difficult to apply, and the draft bill consequently removes it in Clause 183. The draft bill also replaces the term “fair dealing” with “fair use,” and makes other changes “to restructure this exception into a more open-ended general ‘fair use’ exception.”
Importantly, Clause 177 clarifies that “a permitted use is independent of, and does not affect the application of, any other permitted use.” This means that a user may rely on fair use if he or she does not satisfy the requirements of a specific exception.
The Singapore Government is accepting comments on the draft bill until April 1, 2021.