Copyright Bill

Order for Second Reading read.

2.48 pm

The Second Minister for Law (Mr Edwin Tong Chun Fai): Mr Speaker, Sir, I beg to move, that the Bill be now read a Second time.

Sir, when the Copyright Act was first introduced in 1987, we recognised that copyright law could benefit society by encouraging the production of creative works like books, news articles, software, music, art and films by ensuring that the flow of such knowledge, ideas and information will not be unduly stifled.

To do so, copyright law needs to strike a fair balance between, on the one hand, "rights owners", who are the owners of copyright or rights of protected performances and users on the other hand.

This balance is achieved by giving rights owners the right, for a limited duration, to prevent or restrict others from using their works or protected performances while also providing limitations and exceptions to those rights to allow the public to use those works or protected performances without encumbrance.

Over the years, technological advancements and market and societal changes have significantly affected how works and performances are created, distributed and consumed.

So, for example, new and more accessible technologies have democratised content creation. Now, anyone can be a photographer or even produce a short video or film. New platforms enable these new creators to reach their audiences directly. Faster Internet speeds have shifted consumption from physical media and downloads to streaming and the ubiquity of smartphones has led to consumption on the go. All of these changes impact the creation and the use of copyright.

We embarked on a comprehensive review of the Copyright Act to ensure that the balance between rights owners and users continues to be a fair and balanced one even with these changes afoot.

The review included a series of public consultations in 2016, 2017 and most recently, in 2020. And a public consultation on the draft Bill was held in early 2021. We received over 500 responses from both individuals and organisations alike. We heard from various stakeholders in our copyright ecosystem who shared with us their views, perspectives and also their interests. These are the rights owners, the consumers, from the industry, academics and also legal practitioners.

This Bill, which is the culmination of the review, responds to these changes and prepares us for what lies ahead. The Bill, if passed, will repeal and re-enact the existing Copyright Act. To aid in understanding which provisions in the Bill relate to the provisions in the current Copyright Act, with your permission, Mr Speaker, may I ask the Clerks to distribute an annexure to the Members?

Mr Speaker: Please do. [A handout was distributed to hon Members. Please refer to Annex 2.]

Mr Edwin Tong Chun Fai: Members can also access these materials through the SG PARL MP mobile app.

Members will see that this annexure cross-references each provision in the Bill to its corresponding provision in the current Copyright Act. As you can see, the organisational changes are quite extensive. Members may also notice that quite a few provisions in the Bill in the annexure that you now have before you do not have a corresponding provision in the current Act. These are the new provisions.

Sir, I shall highlight some of these new changes, which fall into three broad buckets: first, changes that benefit creators and rights owners; second, changes that benefit users and society generally; and third, broader changes that strengthen the entire copyright ecosystem.

The first category of changes will benefit creators and rights owners to reward them for their creations and also enable them to create new works.

Divisions 1 and 2 of Part 7 of the Bill create a new right for authors and performers to be identified in order to accord them due recognition for their creative works.

Anyone who uses authorial works or protected performances in public must identify the author or performer. The specific circumstances in which identification must be given depends on the work or performance in question. For example, a person must identify the author of an artistic work like a photograph whenever the person publishes it, such as in a book or perhaps in corporate materials, or communicates a visual image of it, such as sharing it online or on a social media platform.

The Bill also provides for exceptions where identification is not needed, including if the identity of the author or performer is not reasonably ascertainable by the user, in computer programs or when the work is an artistic work situated in a public place.

Parties can continue to use contractual arrangements to manage their obligations to identify the author or performer. So, where the author or performer waives his or her rights in writing, then he or she does not need to be referred to or identified.

The attribution rights as a creator are personal to the author or performer and cannot be assigned to a third party.

As this new right is separate from the economic rights relating to copyright, users must still identify the author or performer even if they have a licence to do the relevant acts comprised in copyright, such as a licence to publish the work. So, in cases where the author or performer and the rights owner are not the same person, it will be necessary to obtain permission from both parties.

This right to be identified is only enforceable by civil means via injunctions and damages. Clause 385(2) provides that the Court must consider all relevant matters in deciding on the appropriate remedy, including the defendant's awareness of the author or performer's right to be identified or anything done by the defendant to mitigate the effects of the infringement.

Sir, this new right will help authors and performers gain recognition and build their reputation, particularly in the current online environment where works or performances may be very easily misattributed or, in some cases, not attributed at all.

Another change, Sir, can be found in clause 133 of the Bill, which provides that creators will generally be the default copyright owners, subject to contract.

Today, creators of commissioned works like illustrations or text for corporate collaterals have default ownership of their works. However, creators of other commissioned works, in particular, photographs, portraits, engravings, sound recordings and films, do not have default ownership. In those cases, it is the commissioning party that owns the copyright by default.

This change therefore aligns the default position so that there will be no difference amongst the different types of commissioned works. For example, a photographer hired to take photos at an event would by default own the copyright to those photos he or she took.

While parties can continue to use contractual arrangements to adjust copyright ownership, this puts our creators in a better position before negotiations with the commissioning party commences.

Next, for copyright owners of audio-visual content like films and cable programmes, clauses 150 and 445(b) of the Bill impose civil and criminal liability on commercial dealers in hardware devices, software applications and services that facilitate access to unauthorised content.

Sir, during our public consultations, content owners had highlighted that devices which facilitate access to unauthorised versions of films and cable programmes were becoming more pervasive. They also had difficulty in utilising the existing provisions in the Copyright Act to enforce against the sellers of such devices.

We reviewed the situation and concluded that new liability provisions tailor-made for these situations and, taking into account future use cases, would be useful and would also provide clarity for the industry.

Thus, while the predominant issue today is with devices which facilitate access to films and cable programmes, the new provisions will also be broad enough to cover other types of content like books and songs and other methods such as offering of services to install apps on existing hardware.

The change targets people who commercially profit off hardware, software and services which have only a limited commercially significant purpose or use and other than to facilitate access to copyright works communicated to the public without the authority of the copyright owners.

Acts of a commercial nature, such as commercial dealings by way of sale, offering for sale, distribution for the purposes of trade, will fall within the scope of the new provisions.

The new provisions are technologically neutral: it applies equally to acts in a brick-and-mortar setting as they do to acts on the online platform. For example, a liability is imposed on a retailer, whether in a physical shop or online, who knowingly sells a set-top box or other devices containing pre-loaded applications that provide access to streaming sites housing pirated content.

The new provisions do not impose liability on consumers and users of the hardware devices, software applications or services.

These new provisions provide copyright owners with specific remedies. They should utilise these provisions when enforcing their rights against commercial dealings in these devices, apps or services instead of other liability provisions in the Bill that copyright owners may have previously sought to rely on in the past, in the absence of these specific remedies.

In tandem with the introduction of these specific remedies, we continue to encourage content owners to provide a broad selection of affordable, high-quality content to consumers to attract them onto such platforms with legitimate content.

We also want to urge consumers to respect intellectual property (IP) and consume legal offerings so that we can incentivise creators to produce more quality content.

The second category of changes will increase the scope of permitted use of works and protected performances to benefit society at large and I will turn to this now.

First, let me highlight the change which helps in the use of works and recordings of protected performances for education.

The use of Internet materials for educational activities has increased in importance over the years and now, even more so, particularly in the context of the pandemic, with home-based learning and other online activities.

Clause 204 of the Bill creates a new permitted use of Internet materials for educational activities, including home-based teaching and learning conducted by non-profit educational institutions.

It is limited to Internet materials that are generally accessible to the public for free. For example, a teacher can include news articles or blog posts that are freely accessible on the Internet in lesson plans or homework assignments. The student, in turn, can use these materials for their projects or their assignments in school.

One condition is that the teacher or student must not knowingly use Internet materials which infringe copyright. If they unknowingly do so and subsequently receive a notification from the rights owner, then, they must stop using the material. If the material has been communicated to the public, they must take reasonable steps to prevent further access to the material. Any further use of that material would not be allowed under this permitted use.

The limitation of this permitted use of free Internet materials allows our teachers and students to source from many different up-to-date sources without adversely affecting the incomes of the educational publishers who can continue to charge for their offerings.

Another set of beneficiaries are the print-disabled, for example, the visually impaired, or those who cannot manipulate physical hardcopy books.

In 2014, we passed certain provisions relating to the Marrakesh Treaty, a treaty concluded under the auspices of the World Intellectual Property Organization or WIPO, which seeks to facilitate access to copyright works for persons with print disabilities. We have since received feedback from the users of these provisions.

In particular, the requirement to pay fees to rights owners when organisations help people with print disabilities convert works and protected performances into accessible formats was seen as making the conversion process even more expensive and time-consuming. It also effectively charged persons with print disabilities twice, since they would have already purchased a copy of the work or the recording of the performance for the organisation to make the conversion.

Consequently, Division 4 of Part 5 of the Bill, modifies the permitted uses relating to persons with print disabilities to remove the obligation to pay fees to the rights owner when conversions are made and distributed.

The change supports the needs of the print-disabled community and Singapore's commitment to building a more inclusive society. This also continues to be in line with Singapore's international obligations under the Marrakesh Treaty.

Another change, Sir, is found in clause 244 of the Bill, which allows the use of works and recordings of protected performances for computational data analysis. To give Members an example, this permitted use can be relied on when training an Artificial Intelligence programme or using computers to analyse large databases of materials, without needing to seek permission from each rights owner. It will apply in both commercial and non-commercial contexts.

However, the user must have lawfully accessed the relevant materials, for example, he or she should not have accessed the materials by circumventing a paywall. This supports our Smart Nation initiatives, our push towards data-driven innovation and Singapore's efforts to grow our Artificial Intelligence and technology sectors.

At this juncture, Sir, let me highlight that I would also be moving two amendments to the Bill at its Committee stage, to correct a drafting omission in clauses 247 and 248. These clauses allow the use of sound recordings and recordings of performances under specified circumstances, subject to payment of equitable remuneration to the copyright owner. The amendments, Sir, replace the term "copyright owner" with the term, "rights owner" in both clauses. The latter is a broader term and also includes persons who are entitled to bring an action for infringing uses of a performance. As the scope of the exception covers performances, the amendments ensure that there is a corresponding obligation to pay the rights owner of the performance.

Sir, the third category of changes strengthens the overall copyright ecosystem and I will touch on this now. Divisions 1 and 2 of Part 9 create a new class licensing scheme that sets minimum standards for how Collective Management Organisations, or CMOs, operate. CMOs are private organisations that represent groups of rights owners to grant licences to users. This is an efficient way for users to get licences from a large group of rights owners. For example, users often get licences from CMOs to play songs in public. The alternative would be for users to have to seek permission directly from the composer and the lyricist of each song.

Historically, CMOs have not been regulated. Over the years, we have had feedback from both rights owners and users regarding the behaviour of certain CMOs who, for example, refuse to give information on their repertoire or how they distribute royalties among their members.

In response, an arrangement was reached in 2012 for CMOs to self-regulate through a voluntary code of conduct. However, since then, for a variety of different reasons, the CMOs have ceased to apply this code of conduct. Our public consultation in 2017 garnered feedback that the earlier concerns still remain relevant. Thus, the need for some oversight of CMOs.

In this Bill, the new CMO regulatory framework will be administered by the Intellectual Property Office of Singapore (IPOS) and will address issues of transparency, governance, accountability and efficiency. It will not control the prices that the CMOs charge. In this regard, the Copyright Tribunals will continue to hear any disputes over questions surrounding the reasonableness of licence fees.

IPOS, however, will be vested with powers to set licence conditions, investigate contraventions of licence conditions and also impose penalties for non-compliance. There are also safeguards to ensure the proper exercise of such powers, including the right of a CMO to appeal to the Minister in cases involving more severe penalties, such as where a CMO is ordered to cease its business.

Let me now touch on the rationalisation of the criminal offences in this Bill. This Bill will also rationalise and update the existing criminal offences relating to works and protected performances. Part 8 of the Bill provides for these offences. Offences are now categorised into those with commercial element, which share the same higher penalty and those without a commercial element, which attracts a lower range of penalties. The penalties reflect the severity of the different types of criminal activities and will more effectively deter future acts of infringement.

Finally, Sir, I want to speak briefly on the changes we have made to the structure of and the language used in the Bill. We had made three key changes in this respect.

First, the structure has been redesigned, overhauled, to improve the organisation of the legislation. Second, we have taken the opportunity to ensure that the Bill is written in plain English, for ease of reading and understanding. For existing provisions that have been rewritten in plain English, section 9B of the Interpretation Act helps to clarify that such changes in style do not affect the meaning just because different forms of words have been used to express the same idea. Third, we have included illustrations showing how certain provisions should be applied in common situations to help rights owners and users understand their rights and obligations more easily.

For example, clause 204, which permits the use of freely accessible Internet materials for educational purposes, contains illustrations that will help teachers understand the scope of such permitted use. Because copyright affects everyone, whether as a rights owner or user, these changes will make the Bill easier for all to understand.

Sir, we intend to implement the majority of the Bill, if passed, in November this year. The provisions on the licensing of CMOs, which Members will find in Division 2 of Part 9 and clause 507(4)(c) will be implemented later, after we further consult next year on the licence conditions for CMOs, which will be embodied in the subsidiary legislation.

Mr Speaker, let me now conclude. At slightly over 320 pages, the Bill is a significant undertaking. The responses we have received in our various public consultations, including the most recent one for the Bill itself, have been generally supportive. Respondents tell us that the Bill meets its goal of responding to the challenges and opportunities of the current digital environment and also being easier to understand. Importantly, this Bill will play its part in helping Singapore maintain our top-class intellectual property regime. With that, Mr Speaker, I beg to move.

Question proposed.

3.09 pm

Mr Lim Biow Chuan (Mountbatten): Sir, I declare my interest as a practising lawyer. Although I studied the Copyright Act in 1987, I do not practise Intellectual Property in my practice.

In his textbook on The Law of Copyright in Singapore, the author, Prof George Wei explained that the justification for copyright protection was to "protect the fruits of an intellectual's activity, labour and investment from unfair appropriation or unfair competition."

In an explanatory note about the Copyright Bill 2021, Intellectual Property Office of Singapore (IPOS) explained that the changes to be implemented by the Bill ensure that "our copyright regime continues to provide an environment that benefits both creators and users. It introduces new rights and remedies to provide more recognition for creators to further incentivise the creation of works. It also creates new exceptions for users, allowing copyright works to remain reasonably available for the benefit of society."

Sir, I support the principles behind the Copyright Bill 2021. It is only fair that a creator of works who had put in great effort either to write a book, to write or record a song, to perform a dramatic or musical or literary work or to produce a computer game or software program, he should be able to benefit commercially for his or her intellectual efforts.

I recall many years ago that a person can easily buy pirated cassettes of songs sold at pasar malam at a fraction of the actual costs. You can find entire books being photocopied wholesale and students using these photocopied books in class. Even when I started working, there are computer sales staff who would offer to load pirated word processing software onto the desktop computer that I bought. Pirated computer games are often copied and sold openly in some shops.

Such breach of copyright is not correct because it takes away all the efforts of the authors who had written the books, the songs or the software. It discourages creative work of authors and unfairly allows those who infringe copyright to profit without putting in their effort.

The Copyright Bill 2021 is a comprehensive Bill of some 348 pages. I support the Bill but I wish to seek clarifications on some of the changes to the existing Act which MinLaw had highlighted.

First, it is about ownership of copyright. Sir, I am concerned about the changes brought about under clause 133 of the Bill. The clause provides that creators of certain type of works like photographs, portraits, engravings, sound recordings and films will by default be the first owner of the works, unless there is a contrary intention in a written agreement. This is a slightly different position from the current section 30(5) of the Copyright Act whereby the ownership of the copyright of the artistic works would belong to the person who engages or commissions the author for valuable consideration.

As an illustration, in a case where a consumer engages a photographer to take a video or photographs for a wedding or a birthday party or a family function, he may not be aware that the position has changed and that he need to expressly sign a written agreement to retain ownership of the copyright of his photos or the video. Without the written agreement, the photographer or the videographer may be able to retain these personal photographs of the consumer.

May I ask the Minister whether the Government can consider allowing agreements to be made orally and not just in writing so that a consumer would not inadvertently lose the copyright to his personal photos or video recording just because he forgot to sign a written contract. Would the Ministry also consider providing a standard template for a written agreement in the IPOS or in the Consumers' Association (CASE) website, so that consumers can easily reply on the template agreement to retain the copyright to their videos or photographs.

Sir, this will be a major change in the current position as to who owns the copyright of personal videos or photos. I urge the Government to embark on an education exercise to inform consumers as to the changes which may impact their lives. I believe many individuals may not be comfortable that the photographer, whom they engage to take photos for their wedding, birthday, or social function is entitled to keep these photos in his portfolio. If they are paying the photographer or the videographer, why are they not the owner of the copyright?

Next, Fair Use Exception. I support the strengthening of the Fair Use exceptions contained at clauses 190 to 194 of the Bill. Although the concept of copyright is to protect the intellectual outputs of the creator of the works, the Government needs to balance the rights of the IP owner versus the public interest involved or the needs of society to use the works for education or research or certain other purposes as described in those clauses. Ms Ng-Loy Wee Loon, the author of the textbook, Law of Intellectual Property of Singapore, quoted Sir Isaac Newton as saying, "If I have seen further, it is by standing on ye shoulders of giants".

This is a reminder that every IP creator is building on works created by those who come before him. Thus, the law should allow for the use of certain types of copyright because it would advance the interest of the public. It is also clear that some creators of current copyright works today are only able to do so because there were other foundational creative works done by people before them.

Sir, I wish to seek clarification on clause 204 of the Bill. This clause allows schools and students of non-profit educational institutions to use certain works or recordings or performances available on the Internet. Sir, what if the works, recordings or performances are used by students from institutions which are for-profit private schools, but nevertheless, still for educational purposes? If these private schools have to pay for the royalties, it is likely that they will pass on the additional costs of copyright fees to their students who are also consumers.

I know of many Singaporeans who are mature students and pursuing their further education in commercial education institutions, which are for-profit. Has the Government assessed the financial impact of the increased costs of education to these students? In the larger picture, would it not be better for the Government to encourage education by making it less costly? I wish to ask the Government to consider extending the exception under clause 204 to all educational institutions.

May I also ask the Minister what if the copying is done by charitable organisations for educational or training purposes? Can the Minister clarify whether Institutions of a Public Character (IPCs), which have been set up as non-profit entities and exist for charitable purposes can be granted the same exemption under clause 204?

Next, I wish to talk about commercial dealing in set-top boxes. Clause 150 makes it an infringement of copyright if a person makes a device or provides a service and so on to access works communicated without authority.

I understand that this clause 150 refers to the sale of set-top boxes which allows the buyer of the set-top box to gain access to various online audio or visual content. I can appreciate how this clause is intended to stamp out the sale of set-top boxes in some shopping complexes. But the reality is that similar set-top boxes are also easily available in other countries and in particular, just across the Causeway. May I ask the Minister how does the Government intend to stop the consumer from buying such set-top boxes from overseas? Otherwise, it would be a loophole where consumers cannot buy infringing set-top boxes in Singapore but can do so easily overseas.

Finally, I support the setting up of a new class licensing regime to regulate Collective Management Organisations or CMOs for short.

Currently, CMOs are not regulated. For example, a consumer, who is a video producer, who wishes to use a song for his home-made video as background music, would need to find out which is the CMO which can issue him a licence for the use of the lyrics or the song in the video. He has to enquire whether the CMO is the only organisation allowed to collect the royalty. He then has to negotiate the fee collected by the organisation. As a consumer, he has limited negotiating powers to deal with such CMOs.

Hence, I think it is helpful to regulate such organisations that collect royalties or fees so that there is greater transparency as to the ownership of the copyright and the fees payable. Thus, individuals and commercial entities that play or broadcast music in their restaurants, hotels, malls, offices or shops would be able to deal with the correct CMO and negotiate for the payment of the royalty in a transparent manner.

May I ask the Minister whether there is intent to regulate the amount of royalties or the fees payable to such CMOs. What is the recourse of the individual or business or any entity if the fees charged by the CMOs are unreasonable or exorbitant?

Sir, I would welcome Minister's clarification and reiterate my support for this Bill.

3.18 pm

Assoc Prof Jamus Jerome Lim (Sengkang): Mr Speaker, before I continue, I wish to declare that I am a research-oriented academic that both utilises as well as generates intellectual property, which admittedly I often proceed to sign away, and that my family had previously inherited a number of musical copyrights from my late father, which we have since allowed to lapse.

I will begin by stating my support for the Bill. However, I will point out a number of residual concerns that I have, notably, on the duration of copyrights, copyrights associated with sound recordings, default ownership of copyright works and fair use provisions. I will conclude by taking a step back and asking the broader question of whether intellectual property law has fulfilled its intended purposes.

Clauses 114, 122 and 125 introduced a number of revisions to copyright duration. To the good, it streamlines the expiry of copyrights to a common 70 years, starting either posthumously or from the date of creation or publication, depending on the nature of the work. Such harmonisation and simplification, in general, are certainly welcome in the areas of the law.

Inherent in this simplification, however, are a number of implicit choices that, to my mind, raise some questions. Limiting the duration of copyright for anonymous works to 70 years is certainly better than perpetuity, which was the case before. But setting aside minimum terms stipulated in international conventions, why would such a long duration of protection be necessary in the first place? With no identified author, who would be the beneficiaries of a 70-year copyright and more importantly, would conferring such protection generate net benefits for society rather than releasing its use to the public domain? I shall return to this more general point about the benefits and costs of granting intellectual monopolies at the end of my speech.

Similarly, it is worth observing that the decision to limit copyright protection to 70 years following the creator's passing as opposed to the date of publication, as was the case previously, amounts to an extension of the period of protection. Again, while I understand why such consistency between clauses may be attractive, we should be aware that this inhibits the free usage of such works for the purposes of teaching and research, which yield benefits of their own instead of extending additional rent to copyright beneficiaries.

Before I move on, I would just add that while the comparatively longer copyright duration of 70 years is certainly the norm in most high-income countries, this is by no means unanimous. Canada, Hong Kong and New Zealand have also chosen the lower threshold of life, plus 50 years instead. And it is worth noting that the minimum term in the Universal Copyright Convention is a mere 25 years while Berne Convention's stipulations are either 25 or 50 years, depending on the nature of the work.

Would Ministry share how this 70-year duration then was chosen?

Clause 121(b) of the Bill provides for copyright and sound recordings and was included to respect Singapore's obligations under the EU-Singapore FTA. However, I should point out that there are consequences to both affording copyright for sound recordings as well as taking EU intellectual property standards as a benchmark.

One concern of sound recordings has to do with a practice that is a foundation of modern hip-hop music sampling. This applies especially to drum brakes and modify soundscapes. There is now a large body of precedent cases that have resolved on either side of infringement of fair use, but the point I wish to make here is more general. By admitting sound recordings into copyright protection, we run the risk of shutting down whole genres of emergent creative output.

The pertinent question then, is whether the fair use provisions outlined in Part 5 are sufficient to preclude such overzealous applications. Has the Ministry considered how such potential instances of abuse may in fact be managed? More of a strict adherence to EU standards for intellectual property may end up being a slippery slope.

Members of this House will be aware of the stringency of EU geographical indications and traditional specialties. It is the reason why we cannot, even if we had the skills, know-how and wherewithal to, produce Camembert or Scotch Whisky. Taken to the extreme, even suggestive terms such as "Parmesan-style cheese" would be prohibited.

While these protections almost always apply to agricultural products and hence are largely of academic interest in the Singapore context, we should not be so dismissive of unintended concessions. Singapore has recently embraced artisan beer and spirit manufacture. And there is a risk that stipulate designations such as whiskey with an "e", Ouzo or Grappa cannot be applied to the work of our own craft producers.

Division 8 strikes me as self-conflicted. On one hand, clause 135 grants certain authors automatic ownership of copyright over commission works thereby strengthening legal standing of creators over their intellectual property. But, on the other hand, clause 134 defaults ownership of copyright for sound recordings and films to employers, so long as the work was produced over the course of employment.

One could argue that clause 134 is simply an extension of the current position to cover other types of works and one could further contend that these are two distinct circumstances. In the former, the author is a contractor performing a one-off service and hence, would retain the rights to their creations; while in the latter, the employees engage in a regular employment contract and hence, is being fully compensated for the energies in producing works on behalf of the employer.

But, Mr Speaker, this is an artificial distinction. In both cases, there is payment for services rendered. An employment contract is simply a series of extended one-off commissions and payment for regular employment is paid in lump sum form during payday as opposed to the end of each commission. Hence, these are merely operational distinctions.

Whether the rights to a creation resides with the author or the employer should, therefore, be a matter of private negotiation between the two parties. There seems to me to be no reason why the law should necessarily confer copyright to one party versus the other. To see this, it is simply sufficient to observe, for example, that photographers routinely offer package deals where the client may either purchase all images and the associated rights or they may pay a nominal amount for a set of printed images, without the rights, to the images or their soft copies.

As a result, the two sets of clauses come across as self-contradictory, at least from a logical point of view.

In my view, it is better for the default to vest the rights to the creator and have any rights transfer to the employer along with associated compensation be explicitly drafted into the employment contract. This preserves the transparency of the process while ensuring that the weaker party in the employment relationship, typically the employee, holds the initial bargaining power for their intellectual creations.

As a routine consumer and producer of intellectual property (IP), I regard Part 5 governing fair use provisions as central to the business of ideas. This is truly where the rubber hits the road. Permitting usage of IP is crucial not just from an educational perspective, which is dear to my heart as a teacher, but as any researcher will tell you, an entire intellectual edifice stands on the shoulders of earlier discoveries and developments, as Member Lim Biow Chuan has pointed out before me.

Set against this is the need to avoid abuse. One only needs to be reminded of the American painter and photographer Richard Prince's notorious appropriation art and the risk that an excessively permissive regime may discourage innovation altogether. That said, the limitations defined in the Bill, as they stand, remain unclear.

Clause 194(1b) allows for a reasonable portion of the work to be copied which clause 197(2c), for instance, specifies as 5% or five pages, depending on the total length of a literary or dramatic work. But five pages may simultaneously be too much and yet too little. Five percent of a volume of collected works or five pages of an integrative scientific periodicals such as Science or Nature may well encompass entire articles, whereas five pages of an involved mathematical article may not even include all the pages of a single proof.

While I appreciate that many exemptions of the Bill are for learning purposes in educational institutions, the text is still unclear if this applies uniformly to research exercises as well and whether such use will remain acceptable in a non-educational, but knowledge-based non-profit such as a privately registered think-tank or research institute. Similarly, school-based plays often do charge to cover overheads and possibly raise funds, but are, nevertheless, non-profit in the sense that student actors and backstage crew are unpaid amateurs.

Fair use provisions also raise an important meta-question that has plagued academic publishing. Members in this House may be aware that a number of international academic publishing houses have been accused of exploiting free labour from civic-minded academics and subsequently turning around and burdening libraries with expensive subscriptions.

It took the University of California, the largest public university system in the world, two whole years of bruising contract negotiations to finally arrive at a deal that would allow its faculty and students open access to Elsevier journals. The European Union, in an effort to prevent paying double for publicly-funded knowledge – once to fund the research, another to access it behind a copyrighted paywall – has even gone as far as to mandate that the output of any project that benefits from public funding must remain freely accessible.

All these examples underscore the potential for copyright to be abused and circumvented, even when fair use provisions are carefully crafted. Such rent-seeking undermines the scholarly enterprise, which relies on the free exchange of information. In my view, it is generally better to err on the side of permissiveness, insofar as educational endeavours are concerned. Has the Government considered advancing similar legislation here?

Allow me to close with a somewhat more philosophical reflection on the entire presumption that intellectual property rights are a necessary extension of physical property rights. The conventional case claims that, since transmission of ideas is free, we must, therefore, confer on them protective rights, because the failure to do so would lead to a collapse in incentives necessary to support innovation and invention.

Mr Speaker, it is a fallacy that just because ideas are costless to transmit, they are consequently costless to replicate. Ideas are, ultimately, embedded in knowledge which, as anyone in this House who has slaved over textbooks will know, must be acquired at a cost. By the same token, the ability to develop and embed these self-same ideas into profitable goods and services – the "development" part of R&D – requires a non-trivial and certainly, non-free, amount of human capital to effect the required transformation and a similar costly process of embedding said knowledge into economically-valuable physical capital.

Put another way, just because the technical specifications for, say, the latest microchip, may be freely available, it does not mean that you or I will be able to launch the next Intel or Motorola. We still need to hire engineers who are, indisputably, not going to work for free, to be able to realise the final product. And there is no guarantee they will do a good job either.

Indeed, economic research has shown that innovation could still occur under competitive conditions, even in the absence of IP rights. This would occur if technological improvements enable the quick recovery of sunk costs from the market, for example, when digital-rights management tools can be applied to restrict unabashed replication of books and music, even without the threat of legal force, or when a growing economy reduces the need for intellectual property protection, because growth itself can generate sufficient short-term rents that more than compensate for the opportunity costs incurred in innovation.

The case does, admittedly, become more complicated when we extend our mental model to include not just a home country, but also a foreign one. For instance, protecting foreign IP may even turn out to encourage domestic innovation. However, when targeting IP at goods produced in poorer countries may well raise the innovation rate, the converse would result if IP were directed and targeted at rich-country goods.

Far be it that I should be perceived as suggesting that we should go ahead and eliminate intellectual property rights and withdraw from the World Intellectual Property Organization. Such a move would be, to say the least, extreme. The Workers' Party supports the recognition of intellectual property in the works of authors and performers. Rather, my contention is simply that as much as intellectual monopolies may provide incentives for innovation, they may also encourage socially-costly rent-seeking behaviour, and we should be aware of this inherent trade-off.

In this speech, I have provided a number of examples of potential abuse and overreach. In my view, the only way such overreach may be contained is to ensure that those called upon to resolve contending claims remain sensitive to these trade-offs. To this end, a deferral to the Courts, on a case-by-case basis, of what constitutes fair use may well represent a sound way forward; and this Bill does this.

However, I should point out that this is only the case if there are mechanisms in place to ensure that those adjudicating these cases possess the capacity to evaluate potentially highly technical presentations. The risk, so amply demonstrated in the United States' patenting system, is that highly paid attorneys and technical specialists run rings around time and knowledge-constrained public officers. To this end, how will the Ministry ensure that the technical capability to evaluate the merits of fair use provisions is available in cases of this nature?

In closing, Members of this House who listen to Taylor Swift’s music may be aware that she recently sought to re-record many of her earlier songs, initially released under the Big Machine Records label, which still holds the copyright to those original recordings. But the need for Tay Tay to re-record her own music was to recover control over what she believed to have been a blatant abuse by the record company of the extant IP regime. This episode is a reminder to us that, at some point, even the biggest megastars were once obscure and subject to exploitation by unscrupulous industry insiders. The onus is on us then, as legislators and policymakers, to try to get the balance between the two right.

Mr Speaker: Mr Patrick Tay.

3.37 pm

Mr Patrick Tay Teck Guan (Pioneer): Mr Speaker, Sir, I rise in support of this Bill, which seeks to amend the Copyright Act. The amendments will cement and continue to strengthen Singapore’s world-class IP regime. At the same time, it will also provide enhanced protection to creators.

The rapid technological advancements accelerated by the COVID-19 pandemic have altered the landscape for creatives. Today, almost anyone and everyone can be both a creator and/or a user of copyrighted materials. Accordingly, the amendments are a timely move to cater to this changing sphere.

In my work in NTUC and the Labour Movement, I have had the opportunity to interact closely with various associations, freelancers and creatives. In the past years including recently, NTUC has organised face-to-face sessions with them to better understand, empathise and assist with ground issues and concerns.

Apart from ground engagement with freelancers, we also hold regular legal primers under our LawWorks collaboration with the Law Society Pro Bono Services Office and have been doing so since eight years ago. These legal talks are aimed at distilling and providing solutions to legal issues faced by freelancers. Just two months ago, we conducted a legal primer titled "Freelancing in the New Normal" which addressed, amongst others, common IP questions they had. Recurrent questions include whether they own the rights to the virtual content produced, how contractual clauses may alter the position and how they may best protect their rights.

I recall vividly some seven years ago when NTUC arranged an engagement cum dialogue session between the Professional Photographers Association of Singapore and the Minister for Law at NTUC Centre. The freelance photographers raised PDPA issues and challenges with PDPC, and which were eventually resolved. The issue of creator’s rights also came up at that dialogue then, and the freelancers and us in the Labour Movement lobbied for a change in the Copyright Act to better protect creator’s IP.

With today's amendments, I would like to express my appreciation to the Intellectual Property Office of Singapore (IPOS) and MinLaw for developing this set of legislative amendments. This is a product of countless consultation sessions over the past years between NTUC, the Government and our freelancers.

Like they say, the journey of a thousand miles begins with one step. Having achieved some success in this lobbying front, we are spurred and encouraged to do more. We remain deeply committed towards improving the lives and livelihoods of our freelancers and freelance professionals.

Moving on to the details of the Bill, I will focus on two key changes. First, granting creators and performers the right to be attributed and identified whenever their works or performances are used in public; and second, granting creators default ownership of certain types of commissioned works.

I applaud the amendments, as they augur well for the creators.

With a plethora of content easily available and accessible to all, proper attribution of work will ensure creators are duly recognised for their creative work. Apart from spurring creativity within the community, creators would also be in a better position to commercialise their works for future assignments.

In addition, by granting creators default ownership of certain types of commissioned works, they would be in a better bargaining position before negotiations begin. This serves to level the playing field, in part, considering that service buyers, such as multinationals and companies, usually have an edge over individual freelancers. Should the service buyers wish to own the IP rights, they would have to negotiate with the creators for the same, which would typically involve a higher payment in exchange for the assignment of IP rights.

While the Bill is no doubt commendable, I would like to highlight the existing challenges that freelancers face in the realm of contract negotiations and IP rights.

First, the lack of bargaining power in negotiations with service buyers.

The changes will benefit creatives; there is no question about that. However, the reality remains that there exists a power asymmetry between the creators and freelancers as individuals and companies as service buyers. A common gripe amongst creators is that service buyers adopt a "take it or leave it approach". As a result, they are unable to meaningfully negotiate without being seen as difficult, for fear that the work will be awarded to someone who is more compliant. In other situations, service buyers may drive a hard bargain, forcing creators to accept lower fees for their services.

The power asymmetry between parties is particularly acute in Government contracts. Feedback from freelancers I met are that Government contracts contain overly onerous clauses, for which the Government is reluctant to compromise on.

I will share some of the clauses which freelancers are uncomfortable with, namely, the Government’s right to require freelancers to make an unlimited number of revisions or changes to the product(s); payment by the Government only upon completion and delivery of products and/or services; and complete assignment of all IP rights associated with the products to the Government.

Let me explain the practical implications of such clauses.

First, if the Government requires freelancers to make an unlimited number of revisions to the product, they will have less time and energy for other projects. Correspondingly, this would mean less income for them too.

Second, payment only upon completion and delivery of the products would mean living within tight financial constraints. This problem is exacerbated by freelancers bearing all upfront costs associated with procurement of all materials and expenses required for the project.

Third, I am told that once the IP rights of the materials or contents have been wholly assigned to the Government, upon expiry of the contract, the Government continues to re-use and replicate the same set of materials multiple times over the years, without engaging freelancers for their subsequent services over the years. Instead, Government employees are instructed to use such content or material prepared by the freelancers, for cost-saving purposes.

Quite apart from the onerous contractual obligations that freelancers must shoulder, a culture of fear is also perpetuated by various agencies. Freelancers are concerned that these onerous clauses are being replicated across multiple agencies and tenders. As these onerous terms are seen as the "norm" within many of these Government contracts, freelancers face significant resistance each time they attempt negotiations. If they broach this issue, there is a real fear that they will be "blacklisted" for future Government tenders.

Second, enforcement issues associated with the amendments. There may be practical difficulties associated with enforcing the right of attribution, especially if multiple parties refuse to attribute the creator. Some may be deterred from instituting proceedings for a breach, due to prohibitive legal costs and difficulties navigating the legal system. This problem may be further exacerbated in situations where users of the works are located outside of Singapore, which presents extra-territorial jurisdictional issues.

We need to ensure that any legal recourse available is accessible, affordable and expedient in rooting out such unwanted behaviour.

Service buyers re-use and/or republish the content/performance of creators on various digital platforms on multiple occasions, despite only paying for a single performance. Creativity is a bedrock of inventions and creators the builders of an innovative society. Prior to the pandemic, freelance performers were paid for each of their "live" performances. However, in today's context where most events are held digitally, service buyers have also resorted to publishing and/or screening these performances and recordings on multiple platforms, on various occasions to different audiences. This would mean that freelancers are only paid once for their recorded performances when they would have been paid multiple times for their performances in a pre-pandemic era.

Such practices would stifle innovation and creativity, to the detriment of our society. In this respect, what more can be done to protect the lives and livelihoods of our freelancers?

I have a couple of suggestions. And to that end, I would like to suggest some solutions for consideration. These solutions may be summarised using what I call the three "Es". First E, exemplification by the public sector; second E, educating the public, service buyers and freelancers; and the third E, enlightening the service buyers.

First, for the public sector to take the lead to roll out these amendments and observe the changes, in other words, to lead by example. While we understand that watertight contracts are needed to safeguard the Government's rights, we would humbly ask that the Government exercise flexibility and compassion towards the freelancers, especially in this COVID-19 season.

Where possible, to allow them to retain default ownership over the commissioned works and not have it varied by contract. Perhaps, a licence could be considered, with the scope of the licence to be negotiated between parties. Otherwise, the intended benefits of the amendments may be nullified.

Where reasonable, to accede to their requests for less onerous contractual terms. For instance, limiting the number of revisions to be made by the freelancer before the project is deemed as "completed" and/or implementing interim payment milestones to ease their financial constraints. And it is hoped that when the public sector leads by example, the private sector will follow suit too.

Educating the public. Second, we need to do more to educate the public. In one of my dialogues with a freelance professional, he explained that in the course of his work, he had to obtain various licences and permits from seven different publishing houses to use and perform a particular performance. He told me that it was an administrative hassle determining who he had to liaise with, especially since each publishing house owned different rights over that single performance. In his words, I quote, "It is not that we do not want to comply, We want to comply, we really do, but we do not know how to! It is too confusing."

In this regard, it is humbly submitted that educating the public on easy and fuss-free methods of compliance with would help Singapore retain its position as an IP hub. A one-stop publishing house dealing with all the IP rights would also be useful.

Another aspect of education involves educating the service buyers. As highlighted earlier, some of these onerous clauses are terms "copied-and-pasted" across many contracts and thus regarded as the "norm". As some of the service buyers are not legally trained, they are therefore averse to any amendments. Accordingly, a basic course and guide on contract principles may be useful so that once service buyers are aware of their rights and implications, they would be less resistant towards contract negotiations. And where reasonable, they would be inclined to agree to it, which would expedite matters.

Finally, increased outreach efforts to create awareness of the amendments so that creatives and freelancers are aware of their rights. MinLaw and IPOS may consider producing quick reference guides, infographics and a list of FAQs and/or webinars for creators. Developing a set of precedent clauses for the creatives' use in their contracts with service buyers would certainly be helpful too.

On NTUC's Labour Movement's end, together with IPOS and Law Society Pro Bono Services (BPSO), we will be conducting a LawWorks legal primer covering this set of copyright amendments in October to educate freelancers on it and address any questions that they may have.

And finally, the third E relates to enlightening the service buyers. This is perhaps the most difficult of the three solutions, as it requires a fundamental paradigm shift on the service buyers' part.

Instead of viewing creatives as "difficult" to work with, why not view them as partners embarking on a joint project? Instead of gunning for the lowest price possible, why not consider the years of experience and expertise which justify their fees? Instead of imposing regimental requirements on them with no room for manoeuvring, why not consider flexible arrangements which are mutually beneficial?

Mr Speaker, Sir, this House would know the dire situation that our freelancers are in. With the circuit breaker measures that were implemented last year, together with the existing restrictions on social gatherings, the events and performing arts sector, including getai, has almost come to a standstill. Our freelancers have taken a great hit in this pandemic. All we are asking for is that the Government and other service buyers treat our freelancers fairly, to give them an opportunity at earning a decent keep because every worker matters.

While the amendments to the Copyright Act will improve the lives of freelancers, it is humbly submitted that more can and should be done for them. Let us continue to work together for a brighter future for our freelancers and a brighter future for Singapore.

Sir, clarifications notwithstanding, I stand in support of the Bill.

3.52 pm

Ms He Ting Ru (Sengkang): Mr Speaker, the Copyright Bill before us today was described by WIPO magazine as Singapore's biggest copyright reform in 30 years and is drawn from an extended period of public consultation which started in 2016.

The objectives of the Bill are laudable and include upholding Singapore's international obligations relating to intellectual property (IP), updating and rationalising various aspects of our existing laws on IP and improving accessibility to and ease of understanding these laws. Critically, it also confers upon authors and performers the moral right to be identified and includes provisions governing fair usage of IP matters. It is these final two elements of the Bill that I will concentrate my speech on.

First, on the granting of new rights for creators and performers. Divisions 1 and 2 of Part 7 automatically grant authors the right to be identified in relation to the works they produce and performers to be identified with their performances. This is a welcome step further than the current regime under which creators and performers only have a right to prevent the false attribution of another person as the author or performer.

We support the recognition of IP in the works of authors and performers, yet, I believe that there is room for us to expand such recognition.

In many other jurisdictions, for example, the UK, US, Australia, New Zealand and various European countries, creators and performers earn residual payments, or royalties for the use of their works and performances. For example, writers and actors of television programmes broadcast by the British Broadcasting Corporation (BBC) earn royalties. This is in contrast to the situation in Singapore where writers and actors on Mediacorp television programmes do not do so.

It is further notable that creators and performers have organised themselves into guilds and unions, such as the powerful British performers' union "Equity" and the Writers' Guild of Great Britain, which have not only been crucial in fighting for better pay and working conditions for their members, but are also key in protecting such practitioners and their livelihoods in the wake of the devastation wrought by COVID-19, by negotiating with employers to improve working terms and conditions, improve and ensure diversity in their ranks. They also have a right to be consulted on various matters. The ability to have such representation and rights recognised was particularly important as the industry was wrecked by the lockdowns and restrictions brought on by the coronavirus and will be key in helping them to weather any future major disruptions. In contrast, the Screenwriters' Association (Singapore), while doing good work for the training and development of its members, does not have the power to negotiate minimum standards and protections for its members, and is limited to providing feedback to IMDA focus group meetings upon invitation.

The system in Singapore surrounding creative practitioners is therefore still very much tied with the involvement and endorsement of the Government. Therefore, the Workers' Party would support a move that goes even further than the current Bill in giving more rights, protections and rewards to creators and performers to be in line with those in developed countries. With this in mind, I would like to ask if the Government intends to go even further to recognise the rights of creators and performers by legislating for them to receive royalty payments. Is the change in copyright law, meant to be a step in that direction?

A further question arises about the presumptions that apply for authorial works that are first published in Singapore, as contained in clause 167. I note that these assert a territorially-premised copyright claim. However, it is less clear what the protections and provisions available for international and enforcement of such claims are. What cross-border legal resources are available and are these embedded within a new copyright protection regime? These are not abstract and theoretical questions, as recently seen in the case of a dispute that arose earlier this year over one of our beloved National Day songs.

Second, I wish to raise a number of considerations and clarifications relating to the exceptions introduced by the Bill, primarily the change from a "fair dealing" to a "fair use" exception, which form an extensive part of the Bill. Division 2 of the Bill replaces the fair dealings provision in sections 35, 36, 37, 109, 110 and 111 of the existing Act with the concept of fair use, which "depend on the facts", while still being subject to the considerations specified in clause 191. This shifts the treatment of alleged copyright infringements away from the fair dealings doctrine – the treatment under English law, where violations must fall into categories defined in the statue – toward a more open-ended fair use doctrine, the approach adopted in the US, where factors did not match any exhaustive list.

Importantly, the Bill's open-ended fair use exception now means that the Court need to determine whether the fair use exception applies. I note that this discretion opens up the possibility of significant ambiguity, particularly in the beginning without a body of case law to back it up. This is especially in the case of online content and for themes that are deliberately ambiguous, such as memes or parody.

Given that an increasing number of Singaporeans are creating online content, will the Minister provide any further clarification on what would constitute "fair use" or would this await the guidance of the Courts when the matter has been taken to litigation? This could be confusing for existing content creators who might only have guidance to what would constitute "fair use" of their works but undertaking costly and time-consuming litigation over the potential infringement of their ownership rights. Would IPOS provide specific illustrations of when a use connotes fair use versus when it would not? Such an approach would further the Government's purpose for introducing the fair use exception, in particular, to "create an environment conducive to the development of creative works".

One potential way forward would be for industry associations to take the lead and issue guidelines on what "fair use" would look like for that particular industry, an approach that MinLaw appears to have considered, as mentioned in 2019 MinLaw and IPOS Copyright Review report. Would the Ministry provide an update on whether industry efforts are currently underway to develop such guidelines?

Moving on to a new exception contained in Part 5, Division 8 which is for the reproduction of works for text and data mining. This applies to both commercial and non-commercial activities and would permit reproduction of works and recordings of performances for "computational data analysis", including the preparation of works for analysis. There are protective conditions in clause 244(2), which amongst others, specify that the user must have had lawful access to the work or recording.

While I do see that this is a helpful and necessary exception to have, particularly in the advent of more and more powerful AI capabilities and Singapore's drive to be a Smart Nation, it remains to be seen in the real world if the safeguards and conditions are sufficient to balance protecting the rights and commercial interests of copyright holders against allowing legitimate use of copyrighted material for text and data mining purposes.

Finally, I wish to turn to the impact on consumers. While many modern end-users, raised on the steady diet of electronic media, intuitively grasp instances of copyright violations, could the Minister clarify what efforts have been undertaken to educate the public at large on what constitutes a copyright violation, how to attribute copyright owners appropriately and how to avoid infringing copyright? After all, copyright provisions apply to all Singaporeans and it would be especially embarrassing and unfair for our citizens, in particular, that uncle who has just discovered the joys of the "forward" function on WhatsApp, to find themselves inadvertently running afoul of the copyright law as a result of sharing content.

Finally, I would like to turn to the introduction in clauses 141 and 142 of the Bill of civil and criminal penalties for engaging in commercial dealings due to infringing set-top boxes and services, which include computer programmes and apps.

I support, in principle, the control of set-top boxes and related services as this assists in the enforcement of the protection of IP rights. However, I believe that we still need to guard against a situation where IP protection results in access programming becoming prohibitively expensive and therefore, no longer accessible to all.

It will be unfortunate if the only way in which one could lawfully gain access to content, in particular, sporting events, would be to pay exorbitant amounts in order to do so. Key to this is knowing why else would many otherwise law-abiding citizens resort to using set-top boxes and services to access their desired content.

The recent Euro 2020 football tournament was available only to those who could pay the exorbitant fee of over $90 to have access to all matches. This is in addition to the special subscription rates that go over and beyond basic sports packages that avid followers of the English Premier League have to pay. Overshadowing all these is that Singaporeans pay significantly more for such content than those in most other countries, even those with higher costs of living.

I would not be the first to point out here that in years past, Singaporeans could watch live broadcasts of any sporting events and certainly, I am old enough to remember the thrill of being allowed to watch the epic Wimbledon Final between Steffi Graf and Martina Navratilova in 1988, which was telecast on free-to-air TV. Nowadays, if I want to see if Roger Federer would ever win another Slam, I would need to pay around $49.90 a month or $449 a year for the Sports Plus package to watch it on TV after spending lots of time and effort navigating the confusing variety of different sports, the different channels and providers offer and deal with changes to availability due to exclusivity rights expiring. Mr Speaker, in Chinese.

(In Mandarin): [Please refer to Vernacular Speech.] The Copyright Bill before us today was described by WIPO as Singapore’s biggest copyright reform in 30 years. I, like many Singaporeans, understand the importance of IP protection and would support the authentic versions unequivocally. However, we still need to guard against a bad situation where IP protection inadvertently results in access to media content becoming an expensive luxury.

For example, it would be unfortunate if the only way in which one could lawfully watch the English Premier League (EPL) is through paying for exorbitant packages. Otherwise, why would there be so many otherwise law-abiding citizens resorting to using set-top boxes or other relevant services to watch their favourite content? Take the Euro 2020 football tournament in June for example, to access to all matches, you must pay an exorbitant fee of $90. And let us not forget EPL fans who have to pay for an expensive sports package subscription fee each month. Bear in mind that Singaporeans pay more for similar content than those in most other countries, even those with higher cost of living.

Television used to be a great equaliser in Singapore, but it is ironic and saddening that the advent of paid TV in the wake of the duopoly between Singtel and StarHub – which was ostensibly to give the audience greater choice – has now opened up a divide between those who can afford to pay more to watch top sports competitions and those who cannot afford to do so.

Now that the Government is going to impose civil and criminal liability for commercial dealings in set-top boxes and related services, what steps will the Government take to widen access to broadcast of sporting events? Will certain popular sporting events be broadcast free-to-air or perhaps be shown at Community Clubs?

(In English): Mr Speaker, television used to be a great equaliser in Singapore but it is ironic that the advent of paid TV in the wake of the duopoly between Singtel and StarHub, which was, ostensibly, to give us greater choice, has now opened up a divide between those who can afford to pay the extra subscription charges to watch top sports competitions and those who cannot afford to do so.

Now that civil and criminal liability for commercial dealings in set-top boxes and related services is being imposed, what steps will the Government take to widen access to broadcast of sporting events? Will certain major sporting events be broadcast free-to-air or perhaps be shown at Community Clubs? This will go some way towards preserving access to sports, which has proven to be a great unifier in our otherwise multicultural and multi-ethnic nation. It could also bridge the digital divide for ordinary Singaporeans. It would definitely give us all something to talk about over our morning coffee at our neighbourhood coffee shops. Mr Speaker, I support the Bill.

Mr Speaker: Mr Raj Joshua Thomas.

4.07 pm

Mr Raj Joshua Thomas (Nominated Member): Sir, copyright, as an intellectual property right, is, by definition, very wide because it includes all works that persons and entities create. In this regard, we are constantly generating new works and new copyrights at a rate that we may not even be aware of. Because of its wide-ranging application, it is timely that the Government is seeking to simplify and update the existing Copyright Act and to draft it in plain English to make it easier to understand for the laymen.

An important aspect of the Bill is the enhanced clarity on the permitted uses of copyright works. For example, the Bill makes it explicit that it is permitted to make copies and use copyright works for the purposes of computational data analysis, subject to certain conditions and safeguards. This will allow for aggregation and analysis of data for such purposes as sentiment analysis or machine learning. These, ultimately, have a public interest aspect to synthesise data for better understanding of, for example, social or economic trends. Importantly, this will support the development of technologies in machine learning and deep learning, which, by their very nature, require the input of a voracious volume of data. The permitted use will allow access to this data without having to seek approval or licensing from each copyright owner, which may be a significant obstacle.

The Bill also now makes clear that non-profit schools and their students may use digital resources that are freely available for educational uses without having to seek permission from each copyright owner as long as they are cited with the date of access of the said material. I highlight this, in particular, because digital material is now increasingly utilised in academic work and the existing Act does not adequately deal with what are the permitted or fair uses of such works. This update is important to keep our copyright regime current and relevant in light of the changing sources and mediums of works.

I am also particularly heartened by clause 214 of the Bill, which will allow for conversions of works into formats accessible by print-disabled users without having to pay licence fees to the copyright owner. I hope that this will encourage more conversions of works into formats accessible by print-disabled users. This provision is forward-looking and inclusive and I commend the Government for taking this very specific step in legislating support for the print-disabled members of our society.

Sir, I have three further points to make on particular provisions in the Bill.

First, the Copyright Bill will now standardise the position that the creators of works will be the default owners of the copyrights to these works. This default position is now extended to photographs, portraits, engravings, sound recordings and so on. Hence, where the contract commissioning the particular work is silent on copyright ownership, the creator will own the copyright by default.

Sir, I submit that there needs to be particular effort made in drawing public attention to this reversal in position. It is currently taken for granted when commissioning photographs or films, for example, that the commissioner of the works would own the copyright to the works. This change in position has a very real on-the-ground implication.

In an instance where a couple engages a photographer to take their wedding or pre-wedding photos or videos, they need to ensure that the engagement agreements specifically mention that the copyright would vest in them instead of the photographer or videographer if they wish to own the copyrights. Otherwise, they may be in for a rude surprise that they do not even own the rights to their own photographs and may have to pay further sums to have the rights transferred to them.

So, in this regard, I urge that efforts be made to educate the public of the change of position and what they should do if they wish to own the copyrights to works that they commission.

Second, the Bill will introduce a regulatory framework on collective management organisations (CMOs). In MinLaw's report on the public consultation on proposed licensing of CMOs, members of CMOs and users identified several concerns, including, inter alia, the lack of transparency on how CMOs determined the usage of licensed works to calculate the distribution of fees collected. This has engendered significant suspicion of CMOs by the industry.

In this regard, it is timely that the Ministry imposes a regulatory framework to enhance transparency, good governance and accountability in CMOs, which will go a long way in addressing members', users' and indeed, the public's apprehension of how CMOs operate.

However, with regulation, naturally comes increases in costs. I urge that the Government balances effective regulation with cost control such that increased cost of operation of the CMO is not passed on to creators, in that they receive less royalties for the use of their works. CMOs' transactions are voluminous. Hence, they may also need some time to implement internal standard operational procedures (SOPs) for both governance and reporting, given that they were hitherto unregulated.

In this regard, the Government may wish to consider a gradated approach where regulations kick in over some years so that CMOs are able to cope. Further, I would also urge that regulations are not so onerous as to be prohibitive for new entrants into the market and should not stifle new, different and potentially more efficient ways of operating a CMO.

Finally, Sir, looking ahead, the Bill does not directly address the copyright ownership of AI-generated works. While this is a fairly new area of technology and a complex category of intellectual property rights, the Government may wish to start considering legislation that can definitely fix the ownership of AI-generated works.

Sir, I am confident that the new Copyright Act will support our local creators, improve access to copyright works and create a fairer content management regime in Singapore. In this regard, notwithstanding my clarifications and suggestions, I support the Bill.

Mr Speaker: Ms Ng Ling Ling.

4.14 pm

Ms Ng Ling Ling (Ang Mo Kio): Mr Speaker, Sir, technology has enabled the creation, delivery and consumption of content in ways we could never have imagined. The Copyright Bill is a timely update to ensure that we stay in step with changes in technology, meeting the needs of a growing creative economy and the increased use of data in the form of audio, video and text in all aspects of our lives.

The Copyright Bill seeks to establish a well-functioning copyright system that will help content to be created and attributed rightly, distributed efficiently and consumed fairly.

I hope to raise some suggestions to ensure that Persons with Disabilities (PWDs) among us have equitable and fair access to consume and enjoy creative copyrighted content.

Many PWDs are artistically inclined and are very creative. The Copyright Bill, with provisions for default ownership as well as the right of attribution to be with the creator, will enable creators who are PWDs to have an income from their creation and that their rights are protected. Notwithstanding this, we need to also ensure that they are given the same level of access to creative works as the abled so that they can enjoy content and be inspired by it.

Firstly, PWDs should have fair and equitable access to copyrighted content in a format that they can consume, regardless of their disability. I am glad that the Copyright Bill contains exceptions intended to give persons who are print-disabled greater and more equal access to copyrighted works. These exceptions were introduced in 2015 to implement Singapore's commitments under the World Intellectual Property Organization's (WIPO) Marrakesh Treaty. I am further heartened to know that the obligation for authorised entities to pay equitable remuneration for converting copyrighted works is removed, thus making access for the print-disabled easier.

However, I would like to clarify why this obligation remains for Persons with Intellectual Disabilities, as stated in Division 5 of section 217(3). Intellectual and cognitive disabilities cover a wide range of disabilities that affect mental processes of a person. This includes disabilities, such as Down's syndrome, autism, learning disabilities like dyslexia, brain injuries from illness or trauma and dementia. They result in difficulty in processing complex information, requiring a transformation of the material into more easily understood forms. This transformation can include plain and simple language or high/low versions of written and audio works; changes in formatting, including pictorial illustrations and text-to-speech technology, which help people with dyslexia to access print content.

The same considerations that apply to Persons with Print Disabilities should also apply to Persons with Intellectual Disabilities. Converting content into a form accessible by Persons with Intellectual Disabilities would likewise be expensive, time-consuming and would add to the cost incurred by effectively paying twice to consume the work.

As such, I would like to propose to remove the obligation for authorised entities to pay equitable remuneration to copyright owners for making, distributing or making available copies of copyrighted works for Persons with Intellectual Disabilities. This will bring the treatment of copyrighted works equal for persons with print or intellectual disabilities and likewise, ensure fair and equitable access for both.

Secondly, we should also consider persons with hearing disability are not excluded in the consumption of creative works unintendedly. Many of the copyright provisions are for the print-disabled, which include those with visual impairments, perceptual or reading disabilities or physical disabilities that impede the ability to manipulate a book.

However, technology has made creative content much more immersive, requiring both audio and visual senses to fully participate and enjoy. Content on the web is a rich visual and audio experience which can include audio-visual recordings, documentaries and video reports.

For the hearing impaired to consume such content, it will have to be transcribed into an accessible copy that includes subtitles or sign language. Although technology and artificial intelligence tools may be able to enable auto-transcription, but there are also limitations in the quality of transcriptions and hence, the need for manual transcription, which requires access to copyrighted materials.

Hence, I would like to ask whether the current provisions for print-disabled persons can also be extended to persons with hearing disability. This would ensure that PWDs with different or multiple disabilities will have fair access to content.

Lastly, as we seek to be a more inclusive and fair society, we must make every effort for PWDs to freely participate in the cultural life of the community to enjoy the arts and its benefits. It is important then that this access for PWDs to enjoy works, regardless of the contractual agreements in place between creators and users.

In this respect, I would like to propose for consideration that Division 4 and Division 5 of Part 5 to be included in the list of exceptions from being restricted by contracts so that the authorised entities would be able to provide accessible copies for PWDs, beyond those who are print-disabled, without having the heavy burden of verifying the contractual terms or the fear of a breach of contract. This will encourage greater participation and inclusion of PWDs in our growing arts and cultural works. Nonetheless, this should also be done and carefully applied such that it does not unreasonably prejudice the legitimate interests of the creators.

As a society, we have grown and matured in our expression and appreciation of arts, culture and creative content. Through the Copyright Bill, we are putting in place a framework to acknowledge the rights of creators and value their work, and updating the law for the digital age. We also need to recognise that PWDs can and should be able to access and participate in the cultural, arts and creative expressions like any of our fellow Singaporeans. I hope that MinLaw will consider my suggestions so that we can build a truly inclusive and fair society. Sir, notwithstanding my suggestions, I support the Copyright Bill.

Mr Speaker: Order. I propose to take a break now. I suspend the Sitting and will take the Chair at 4.45 pm.

Sitting accordingly suspended

at 4.21 pm until 4.45 pm.

Sitting resumed at 4.45 pm.

[Mr Speaker in the Chair]

Copyright Bill

Debate resumed.

4.45 pm

Mr Yip Hon Weng (Yio Chu Kang): Mr Speaker, Sir, I support the Government's move to strengthen copyright laws. I will touch on three points in my speech. My first point is on creating a culture that attributes creators. This is shown in the amendment which allows schools and students to use freely available resources from the Internet. These are for educational purposes, if they acknowledge the source and cite the access date.

During home-based learning, some teachers face challenges with producing compelling learning content for their students. As the Internet is a gold mine of educational content, it is sensible to tap on it. This should come without encumbering teachers with the onerous requirement of getting consent, as long as the content is readily available for use. Students will, in turn, be reminded to discern the legitimacy of online sources, as well as to reference them in their assignments, when they see their teachers properly quoting their sources.

The right to be identified and the mandatory acknowledgement of sources will help to cultivate a culture that recognises creators. Starting young also helps to inculcate the right habits of referencing and the value of honesty as they progress academically. Teachers can also inculcate the right referencing styles and the use of reference management programmes, especially as our youth become more tech-savvy. As assignments become more complex, students increasingly use online resources for their projects. Such skills will guard against plagiarism and ingrain the right values. Can the Government share on efforts to build up this culture in our schools?

Mr Speaker, Sir, while granting creatives the right to be identified is a positive step forward, my next point is that the Copyright Bill should grant creatives due recognition and protect their right to commercialise their work. With the challenging employment landscape, more young Singaporeans are turning to freelance content creation, with the hope of eventually turning it into a career. The proliferation of e-commerce has led to a surge in demand for digital marketing services and consequently, visual content. The gig economy has provided increased opportunities for graphic designers and content creators to work on projects and earn an income. This is not only within Singapore, but also from an international market.

But to do so reliably, they must be able to defend the intellectual rights to their concepts and creations, as well as to guard against unscrupulous people who may plagiarise their contents. Otherwise, how can they expect to be fairly renumerated, if their creations and ideas can be copied and used by others without repercussions? Without such safeguards, such gig economy content creators may no longer find it worthwhile to create unique content. Consequently, we may lose such local talent.

I know of a young designer who had once pitched a logo design to a company. Eventually, the company did not engage his services. But when the company revealed their logo design, he found that it bore great resemblance to the design that he had created. He was convinced they had misappropriated his design and merely altered it slightly. However, he thought it would be too troublesome and costly to take legal action. He also lacked confidence in achieving a successful outcome, as he did not copyright his design. His story is not unique. It is a perpetual challenge for young content creators, especially those who are just starting out, to protect their works from companies preying on their inexperience.

As such, there must be effective and affordable means of enforcement for such matters. Granting and recognising rights is one thing. But it is meaningless if creatives are unable to effectively enforce their rights in an affordable manner and to seek recourse. Mediation is probably one cost-effective way to deal with such matters. Having volunteered as a mediator in MinLaw's Community Mediation Centre, I am an advocate for mediation before litigation. I have witnessed many disputes due to a misunderstanding or a lack of awareness.

Many people are intimidated by the idea of Court proceedings. Hence, mediation is always a more approachable and affordable means for problem-solving. I note that the Intellectual Property Office of Singapore (IPOS) offers mediation as a formal route to settle copyright disputes. Even so, the costs can be hefty for a freelancer just starting out. The cheapest option appears to be an administrative fee of $50 per party and a mediator fee of $500 per party for a four-hour session. That, alone, may exceed the cost of a brand logo design. The victim may feel that the cost, time and effort to go through mediation are not worthwhile in pursuing the matter.

With the rise in independent content creation, it is timely to consider a separate mediation route that is more affordable and streamlined. The goal is to make mediation more accessible to independent gig economy workers. Furthermore, if any copyright infringement has been found, the guilty party should be made to bear the entire mediation costs.

Besides mediation, there should be other mechanisms, such as tribunals and so on, that could be set up to hear such disputes. My other concern is whether these laws would have any impact, if the copyright infringement is committed by individuals or organisations overseas. This is likely to be increasingly widespread due to the borderless nature of the Internet.

Mr Speaker, Sir, my last point is on the permitted sharing and copying of materials provided by the Public Service. This is for the purpose of facilitating public interest. Fake news moves very quickly these days. It is reassuring to know that we can simply forward an infographic from the Government's social media accounts to debunk myths, without fear of legal repercussions.

Many of my Yio Chu Kang residents, especially seniors, do not enjoy reading walls of texts. As such, simple-to-understand infographics and digital pamphlets from the various Government websites, are very much appreciated. The agencies' logos on the materials save us the trouble from having to determine the legitimacy of the source.

While the Bill states that the materials can be copied, I wish to clarify whether such materials can be incorporated into an existing publication, like a pamphlet that also contains other content. In essence, can contents from different sources be combined, without the need to seek permission? I recalled previously that a grassroots volunteer wanted to produce a community event flyer that would also contain information on social distancing and mask wearing. He was unsure whether it would be legal to copy the contents from the MOH website. In the end, he abandoned the idea. Can the Minister provide some clarification on this?

In conclusion, Mr Speaker, Sir, protecting intellectual property is critical for innovation, which, in turn, is critical for Singapore to thrive as a knowledge-based economy. Job losses as a result of the pandemic saw many more Singaporeans setting up their home businesses or freelancing.

Many would promote their creations and portfolios on social media, from music to visual content, source codes and so on. It is timely that we update the copyright laws accordingly. As mentioned in my speech, our copyright laws should not merely protect the rights of creatives to commercialise and prevent exploitation of their work. It should also respect the work of creatives. This will encourage more Singaporeans to share their creative works and inspire others, knowing that it is respected and protected by law. I support the Bill.

Mr Speaker: Ms Yeo Wan Ling.

4.52 pm

Ms Yeo Wan Ling (Pasir Ris-Punggol): Mr Speaker, the landscape of innovation and creativity in any society has always been an intricate balancing act. On one hand, placing too many restrictions on the flow of ideas and creative work and society hinders the possibility of good ideas being built upon and turned into great ideas, disallowing society from standing to collectively gain from the brilliance of individuals. On the other hand, too few restrictions discourage these individuals' expressions of brilliance, believing they will not stand to gain from their creations, in turn, dealing a fatal blow to the generation of ideas from a society.

This is why I and the Labour Movement welcome the troubleshooting of the Copyright Act, as the Government endeavours to adapt to changing concerns and the evolving landscape of innovation and creativity. This is especially pertinent to a league of freelancers in our society: the Creatives. Creatives come in all forms, from the visual, to the literary, to the musical, even the culinary and the floral arts!

Mr Speaker, many of us would be familiar with the trope of a starving artist: dedicating their lives to their passionate pursuit of their craft, sometimes forgoing material comforts as they realise their work does not meet its proper valuation in the economic realities of the market. Most of us would be quick to diagnose that the depressed wages of creative freelancers to the harsh mechanics of the free market. However, I would like very much to raise the visible and sometimes unethical hand involved in contracting practices with our Creatives.

While we welcome efforts to give first ownership of copyrights to authors and makers in commissioned work, the reality of transactions between Creatives and their clients runs back much further. Even before contracting, Creatives often find themselves having to pitch their work to their clients, who will, in turn, choose who to commission for the job. Let us take designers, for example.

Many think that the process goes like this: the designer offers a great idea, the client likes it, they contract with the designer and the designer goes on to make their design a success for the client. However, how transactions often go is like this: the designer still offers great design ideas, the client still falls in love with that idea, but they contract with another designer who might be willing to take a smaller cut and this designer who is willing to do it for less is given the pitch from the other designer as a "reference", effectively clearing themselves of all hoops presented by our laws as they stand, as long as the "reference" is not plagiarised wholesale.

In the long run, Creatives are subject to a race to the bottom in terms of their compensation because it is not great ideas that are rewarded but, instead, their willingness to forsake a fair wage. Mr Speaker, we must take a full view of transactions within Creatives and their clients if we want to build a regulatory ecosystem that truly promotes innovations and their innovators. Strong and sensible contracting terms are welcomed, but an inquiry into pre-contractual interactions, such as pitching, must be also considered in this debate.

Creatives often want their work to entertain, inspire, relate, tell a story and there is, indeed, power in their creations. Yet, the power of the creative work is never far detached from the person behind the creative work. As one freelancer expressed, "art is a reproduction of myself". Any inquiry into the great creative works of yore never find themselves detached from their creators. Listen to the familiar tune of "Für Elise" and we remark, "ah, Beethoven". Marvel at the great paintings and we quickly call to mind "Monet" and "Rembrandt". This very intimacy between the Creative and their creation is what our copyright laws serve to protect.

While this sacred bond is well protected when it comes to most creative mediums, an often overlooked demographic of Creatives are those who happen to express their craft visually and through their likeness. Mr Speaker, Sir, I am referring to models in Singapore.

At this juncture, I would like to share a story of my resident, Miss Duan, who has recounted her experience to me as a model. To perfect their craft, Miss Duan tells me how Creatives do not just "sit and look pretty". They actually chisel out a whole entire lifestyle around their craft. The preparation for a shot is often extensive, requiring collaboration across photographers, stylists, dieticians and producers, as well as comprehensive planning, including location, dressing, equipment, amongst others. Modelling is hard work and the often-elegant final product betrays the amount of hard work that has been poured into the process.

You could imagine my resident's dismay, however, when it was revealed that an artist had illustrated her likeness from one of her test-shoot photos and went on to commercialise and profit off her piece of work. This, certainly, was not Miss Duan's first experience with her likeness being appropriated by others. But without the firm recognition of image or personality rights in Singapore, she was fully subject to the cooperation and compliance of the other party. Unfortunately, for my resident, on this occasion, the other party was unwilling to make recourse.

It is necessary that we have the regulatory environment shaped in such a way that our Creatives' "rice bowls" do not rest shakily on the goodwill of strangers. Instead, our laws must create meaningful forms of transactional safety nets among Creatives who wish to use one another's work.

To conclude, in order to safeguard the interests of Creatives in Singapore, we must make considerations that reflect the realities of transactions between freelancers and their clients, and amongst the Creatives themselves. Accommodations must also be considered for niche creative fields, such as modelling. These concerns notwithstanding, I support the Bill.

Mr Speaker: Mr Louis Ng.

5.00 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, there is now increasing diversity of how content is created, distributed and used in the digital sphere. This Bill to strengthen Singapore’s copyright regime is necessary and timely.

This Bill will be important in encouraging creativity and protecting creators and their works, carving out crucial fair use exceptions and strengthening the copyright ecosystem. That said, I have three points of clarification.

My first clarification is on the safeguards on the permitted use of materials for text and data mining for analytic purposes. Section 244 permits the copying of the works for the purposes of computational data analysis. Under section 187, creators are not allowed to restrict this by contract.

It is not clear why we have designed such a specific carve-out. Why should creators not have the power to protect their works specifically from being the input data for some machine-learning model? What is the principle behind this special condition?

We should note that the results of computational data analysis may be extremely profitable and it is not necessarily the case that the original creators may know or be comfortable about their work being used in this way.

Can the Ministry share how it intends to ensure a balance between allowing the use of works for computational data analysis and the interests of copyright holders?

My second point relates to enforcing the new right of attribution. Part 7 of the Bill provides a moral right for the author of a work to be identified if another person causes that work to be published.

I welcome this development as it gives creators recognition for their efforts and respects their work. However, in practice, independent or smaller creators with limited resources may not easily be able to monitor publications of their works and enforce their rights. Even if creators discover a breach of their rights, they have to bring an action in Court under section 383. In that scenario, the legal costs might be too high to make enforcement worth it. Further, the available remedies under section 385 include injunctions and damages. It may not be cost-effective for creators to seek injunctions and damages may be difficult to prove and quantify.

Can Minister share if additional measures will be taken to help these creators enforce their rights? For example, will the Ministry consider creating a special Court process or use the Copyright Tribunal for a cost-effective means of enforcement.

My third point of clarification relates to the expanded rights of creators. I support this new default position in the legislation.

Under the new Copyright Act, creators and performers have the right to be attributed when their work or performance is used. Also, creators of certain works including commissioned photographs, portraits and engravings will be granted default copyright ownership.

These new rights are supposed to give individual freelancers and creators from small- and medium-sized enterprises greater bargaining power to negotiate better terms with commissioning parties.

However, the contrary may also be true. These default positions can be restricted and excluded by contract. The safeguards are that the contract must be individually negotiated and the contract term purporting to restrict the exception must be deemed to be “fair and reasonable”.

There is often a power imbalance with creators on one end and publishers and producers on the other. Publishers and producers may use these same rights against creators. Publishers and producers are likely to favour contracting with creators willing to cede copyright ownership rights to them, rather than one who wishes to retain it or negotiate better terms.

I understand that the Ministry views legislative intervention a blunt tool in addressing these issues. I am also aware that the Ministry instead plans to collaborate with industry associations to develop sector-specific self-help resources. That said, can the Minister clarify if there are additional resources that will be put in place to level the playing field further?

As individual freelancers and small- and medium-sized businesses lack financial resources for litigation in the case contract terms are found unreasonable, what alternative avenues of recourse are available to this group?

Sir, notwithstanding these clarifications, I stand in support of the Bill.

5.04 pm

Mr Shawn Huang Wei Zhong (Jurong): Mr Speaker, I will highlight three key aspects of the Copyright Bill. First is the right to be identified; second, on computational analysis; and third, on CMOs.

I believe in the right for creators to be properly identified and take credit for work done. We must honour the creative work of our authors and performers. As this will be the foundation to build an ecosystem based on recognition, respect and reputation for our Singapore creatives.

It is an important step for creators of original content to build their personal reputation and incentivise the creation of new works with more equitable rights. In the digital era where such content may be rapidly replicated and distributed, can the Minister share how freelance creators with little resources can seek legal recourse without delay to better protect their reputation and commercial value of their work?

On the amendments for computational data analysis, I welcome the change as we step into the world of data analytics and AI. It is relevant in the information age to enable greater freedoms on the use of information for data analysis to spur a deeper understanding of our world and the domain, which would in turn build a more vibrant and responsible data-driven ecosystem. There is a more critical need for Singapore as we need to continue to be relevant as a global business hub and evolve together with emerging trends and challenges.

However, there are scenarios where the work of a creator or collective is pivotal to the outcome of the computational data analysis, for example, if 90% of the data was from an individual or a collective, without their significant contribution, this study would not have been possible. Does the Ministry have measures to protect the rights of these individuals, given their significant contribution, to ensure that there is proper attribution and protection of their reputation and commercial interest?

On CMOs, the aim is "to build a fair, safe and transparent system where CMOs, rights owners and future generations can reap the rewards of an efficient copyright ecosystem". These proposed changes would benefit all stakeholders. However, due to the transnational nature of the copyright ecosystem, can the Minister share how these new measures affect the relationship between CMOs and copyright owners based in Singapore and overseas, especially when the relationship is between a foreign-based distributor and local freelance creator?

Mr Speaker, I support the Copyright Bill.

5.07 pm

Mr Don Wee (Chua Chu Kang): Mr Speaker, Sir, I support the changes introduced in the Copyright Act, which ensures that the copyright continues to reward the creation of works and the works are available for the benefit of society at large; and as a result, the copyright ecosystem will be strengthened.

I have few clarification questions.

Besides pursuing artistic excellence, financial benefit is another factor that will motivate the copyright holder to produce more good work. Will MinLaw work with MAS and the accountancy sector to develop a valuation and financing framework so that the copyright can be valued, collateralised and be encashed?

The Copyright Bill provides that acts outside Singapore do not infringe the moral rights of creators or performers. Are there any other avenue which can allow a Singaporean copyright holder to sue a foreign infringer?

The Copyright Bill appears to support a measured balance between the public interest in permitting the use of computational data analysis and the legitimate interests of copyright owners. It remains uncertain how the safeguards for copyright owners will be interpreted in light of the growing use of artificial intelligence and machine learning platforms to perform autonomous data mining.

I applaud the idea of attributing the work to the creator. However, in reality, it may be challenging to identify the creator or performer of the performance.

If my interpretation is correct, commissioners of works are to ensure appropriate assignments are entered into with the creators. How about the contracts signed before November 2021? Are the commissioners going to incur legal costs to ratify these contracts? Can the new Act grandfather the contracts signed before November 2021?

Copyright holder needs to know that reworking of fair use into an open-ended exception is not a straightforward process as it will require determination by the Courts as to whether the potential infringer can avail itself of the new exception in any given situation on a case-by-case basis. Until the Courts have decided, infringers are likely to cite new open-ended fair use exception to defend against allegation. Do we have any mitigant here?

Paraphrasing commonly known legal concepts into layman's language can lead to misunderstanding on the part of the public as well. For example, the introduction of the term "permitted use" to describe not only legal exceptions to copyright but other "permitted uses". It may cause confusion for a common man. It is important for the public to understand that the copyright owner is not permitting the use; in fact, in the case of a legal exception or fair use, no concurrence is required. It may be better to be precise, emphasising that a fair use is a legal exception to a copyright holder’s monopoly right, not one that has been "permitted" as in the case of a licensed use.

The fifth factor to determine "fair use" has now been omitted from the Bill. I understand that it is subsumed in the fourth factor, in other words based on the effect of the use on the potential market. I feel that this is not as straightforward as the previous wording in providing guidance to the Courts. In Mandarin, Sir.

(In Mandarin): [Please refer to Vernacular Speech.] The Copyright Bill provides people who are print-disabled such as the visually impaired greater access to copyrighted works. Under the Copyright Bill, such persons will no longer be required to pay remuneration in situations where a print copy needs to be converted into other formats to benefit those who are print-disabled. This amendment will further promote an inclusive society in Singapore.

When talking about an inclusive society, it is difficult to ignore the problem of illegal set-top boxes. Popular sports events such as the English Premier League, the World Cup and NBA can only be watched through paying expensive subscription fees. I would like urge MinLaw to discuss with MCCY and explore whether the Government can pay for the broadcast?

Mr Speaker: Minister Edwin Tong.

5.13 pm

Mr Edwin Tong Chun Fai: Mr Speaker, I thank the various Members who have spoken for their support of the Bill. Their speeches illustrate some of the competing issues that we face when designing this Bill. Having more exceptions and making inroads to free use or widening fair use all mean less recognition for creators, less remuneration that they receive for their works. Conversely, too tight a framework on copyright with less exceptions, tighter fair use, might mean that public interests and access might then not be fulfilled.

So, in designing this Bill, we have had to tread a balanced path, look at all the competing interests and balance it one against the other and find a path that at once, allows public interests in content but at the same time, creates an environment where creators can be recognised and attributed for their works.

Sir, Members have raised various suggestions and questions on the Bill. Broadly, in four categories as follows: one, some of the difficulties that rights owners might face; second, clarifications on some of the changes; third, they have raised several suggestions for further changes to be considered; and finally, the communication of these changes to the public.

I will address Members' queries in these four baskets.

Mr Louis Ng, Assoc Prof Jamus Lim, Ms Yeo Wan Ling and Mr Patrick Tay highlighted that the change in the default rules of ownership helps to put creators in a better negotiating position. But creators who are freelancers or small business owners might still face the imbalance of negotiating power that can negate the benefit of the change.

Sir, this Bill provides for a change the legal position for default ownership, in favour of creators. But we cannot, however, legislate for negotiating power. The Bill would not be able to take into account the relative considerations in every commercial negotiation.

For example, if we legislate that creators will always have ownership, regardless and do not allow contracts to change this position, this might not cater for situations where the creator wants to assign or sell his or her own copyright for good commercial reasons.

Creators should instead consider coming together, forming industry associations to develop industry best practices to represent them.

A good example is NTUC's Freelancers and Self-Employed Unit. They advocate for best practices. It seeded an industry association, the Visual, Audio, Creative Content Professionals Association, or VICPA; worked with Law Society Pro Bono Services to develop and publish a handbook, "Advocate for the Arts: A Legal Handbook for the Creative Industries".

The UK Society of Authors and the Australian Society of Authors similarly support their members in the same fashion.

We will continue to work with Government agencies overseeing the development of the various industry sectors to encourage and to support the development of industry associations and industry best practices.

Encouraging organisations who commission works to act more reasonably is another factor that would help the current situation.

Mr Patrick Tay had a couple of good suggestions on how the public sector can lead by example and how service buyers can be educated on basic contract principles. We will continue with our education efforts within the public sector on these procurement issues and also work with Government agencies to explore how we can educate other service buyers.

On enforcement, Mr Louis Ng, Mr Yip Hon Weng, Mr Patrick Tay and Mr Shawn Huang highlighted that creators and performers may lack the financial resources to take enforcement action against infringers.

Mr Louis Ng, in particular, asked whether there could be a special court process created or whether the Copyright Tribunal could be a cost-effective means of enforcement. Mr Yip Hon Weng suggested that there could cheaper alternatives such as mediation for freelance creatives.

We have received much of this feedback and discussed it a lot with stakeholders during public consultations. A solution would have to stretch beyond the current legislative amendments. We will ensure that there are cost-effective enforcement options available and that creatives who are individuals or small business owners will be made aware of them.

First, IPOS runs the IP Legal Clinics. Its aim is to provide creators and performers a quick and easy way to assess their situation, to decide if they own the copyright, what is the level of infringement, what the next steps might be.

Typically, there is a 45-minute session with an IP specialist lawyer. Advice can be sought on any IP infringement issue, including enforcement options. The costs are fully reimbursable by IPOS.

In general, many clear situations can be resolved by a simple letter asserting rights, by telling the alleged infringer of the rights and asserting them, and asking that the user then stop their actions, pay the licence fee or, in the appropriate cases, give credit for the application.

Second, we are continuing to make Court processes more accessible to creators and performers. Members might recall that in 2019, I mentioned during the Second Reading of the Intellectual Property (Dispute Resolution) Bill that MinLaw and the Supreme Court were looking into the introduction of a specialised IP litigation "track" in the High Court with simplified processes and cost-saving features. That simplified process track is about to be introduced and more details will be announced in the coming months.

Finally, we appreciate the importance of efficient and cost-effective alternative dispute resolution mechanisms such as – as Mr Yip Hon Weng has suggested – mediation.

I believe the fees mentioned by Mr Yip Hon Weng are for mediation of copyright disputes in Singapore under the auspices of WIPO's Arbitration and Mediation Centre, or WIPO AMC. These fees are in fact the result of IPOS' existing collaboration with WIPO AMC to reduce mediation costs for copyright disputes and are already highly subsidised.

That said, we are already exploring with other Government agencies on how to make mediation even more accessible. I am happy to hear that Mr Yip Hon Weng subscribes to this as well and we would be happy to take on board his suggestions.

Mr Yip Hon Weng and Mr Don Wee asked how creators and performers can enforce against people outside Singapore. I think Ms He Ting Ru also raised the same point.

A fundamental point is that copyright laws are territorial. They protect copyright within the territory, that is, Singapore. Our copyright regime allows rights owners to enforce against acts of infringement that occur in Singapore, regardless of whether they are by a local or a foreigner. But the key point is that these are infringements that take place within our jurisdiction.

Likewise, other countries have similar copyright regimes which allow rights owners in Singapore to take action against acts of infringement that might occur in their countries.

Several Members had questions on the details of the changes and I will now turn to a few of them.

Mr Lim Biow Chuan asked whether, instead of written agreements, oral agreements can be used to change the default position. Mr Don Wee asked how past contracts are treated with the change in the default ownership for commissioning situations.

Sir, oral agreements can and oftentimes will present evidential difficulties when there is a dispute. The intention here is not to add on a further overlay of disputes. Consumers typically are even more vulnerable between the two parties if oral agreements are allowed. It is often going to be one man's word against another. But having said that, we will consider Mr Lim Biow Chuan's suggestion, which is a good one, for a template for a written agreement of copyright ownership.

Clause 135 of the Bill clarifies that contracts entered into prior to the effective date of this Bill will not be affected by the changes I spoke about. This ensures that the existing contractual arrangements which have already been entered into will not be affected by this Bill.

Mr Don Wee had a question on the challenge for users to identify the creator or performer. I had mentioned it earlier but let me just reiterate. There will be appropriate exceptions where identification would not be needed. For example, when the identity of the creator or performer is not reasonably ascertainable.

Assoc Prof Jamus Lim asked about the duration for protection and whether these are based on our international obligations. He might know that we are bound by the United States-Singapore Free Trade Agreement (USSFTA) and the European Union-Singapore Free Trade Agreement (EUSFTA), which have a minimum duration of protection. That is what we have provided for in this Bill.

This is higher than what other countries are bound to and this stronger protection of IP is balanced in this case by the various permitted uses in the Act, which I had discussed earlier and which Members had spoken about.

Second, Assoc Prof Jamus Lim also asked about new provisions on sound recordings and whether they are EUSFTA obligations. They only add new rights related to public performance and broadcasting of sound recordings.

It should be noted that we already protect sound recording rights today, for example, to prevent copying. To our knowledge, based on the extensive feedback and the industry consultation, there is no evidence that this protection, which also exists in other countries, would inhibit creativity in new areas.

Third, Assoc Prof Jamus Lim also asked about the change of default ownership and I think he spoke about the employer-employee relationship. This is based on international industry and legislative norms, including what the UK does for their framework. This was also discussed with stakeholders during our consultations and public consultations. The point really is, the Bill sets up a default position from which parties can negotiate. And I think that is a point Assoc Prof Jamus Lim also raised.

The point is that the position in law, as set out in this Bill, is the starting point. Parties then negotiate away from that position. But there has to be a starting position, as a default.

Mr Lim Biow Chuan asked whether there would be a loophole that consumers can buy from other countries set-top boxes that stream unauthorised sources of content. The new provisions impose liability on those who deal commercially with such boxes, like sellers, but not the buyers of such boxes. This was done having regard to striking a right balance.

Prevalence of such devices and services is an issue around the world. Different countries are at different stages of dealing with this issue. Eventually, it is likely that these devices and services will also be banned or legislated against in other countries too.

Mr Lim Biow Chuan also asked whether the permitted use in relation to Internet materials for educational purposes for non-profit schools could be used by for-profit schools, charitable organisations or Institutions of a Public Character (IPCs), and if not, whether it could be extended to them. Again, the point I made at the outset is, we strike a balance. The more inroads you create in terms of exceptions or fair use, the less likely it is that creators and content owners will be appropriately remunerated for their content.

So, here is a balance and we believe that clause 83, which defines educational institutions that can benefit from this permitted use, strikes the right balance, requiring them to be non-profit, generally covering full-time education and also includes training for adults for their profession.

Mr Lim Biow Chuan asked about charitable organisations and IPCs. They can avail themselves of this permitted use if they fall within the criteria of clause 83.

As I mentioned, this is a balanced position. Copyright owners' interests also need to be considered when we legislate. Around the world, copyright permitted uses for educational purposes only cover non-profit schools in general.

Even if for-profit schools, charitable organisations or IPCs cannot avail themselves of this permitted use, there could be other permitted uses or exceptions which might apply, like fair use.

I believe Assoc Prof Jamus Lim mentioned what happens in a situation where you want to use the material for non-educational but knowledge-based think tanks, if I heard him correctly. In this situation, the fair use does not prescribe restrictions to the type of organisations which might avail themselves of the fair use.

On computational data analysis, several Members asked some questions.

Mr Don Wee asked about the safeguards for rights owners, particularly in light of the growing use of artificial intelligence (AI) and machine learning. Mr Shawn Huang asked whether the permitted use would treat rights owners whose work is instrumental to the outcome of the computational data analysis differently, such as requiring attribution or protecting their commercial interests. And Mr Louis Ng asked why it cannot be restricted by contract.

Let me first highlight to Mr Don Wee that the definition of computational data analysis is broad enough to include AI and machine learning. I think I mentioned that in my initial speech. The conditions of permitted uses were developed with that in mind.

To answer Mr Shawn Huang, let me explain the principle behind permitted use. Computational data analysis treats the works as data points and does not make use of the expressive nature of the works, which is what copyright fundamentally seeks to protect. In short, because computational data analysis does not itself make use of the expressive nature of the works, the rights owners' reputational and commercial interests are not adversely affected.

To Mr Louis Ng's question, many permitted uses can be modified or excluded via reasonable contract terms. However, some permitted uses are mandatory for public policy reasons because the benefit of that particular permitted use could be drastically reduced or even non-existent if we allow contracts to modify its application. So, we protect certain categories which are necessary for public policy reasons, and computational data analysis is one such category.

The benefit of data analysis improves as the set of underlying data used is as complete as possible. Having specific databases locked out of the analysis because of contractual restrictions would make the results less useful, or worse, create bias or inaccuracies.

Therefore, it is important not to allow private contractual provisions to override this permitted use. It supports the development of useful applications of data analysis, which is indispensable to the current digital economy.

In addition, this permitted use only covers materials to which a user must have had lawful access, such as by paying the subscription fee for the database. So, where the creators or publishers of the materials charge fees in order for users to access such works, that revenue would not be affected.

Mr Yip Hon Weng asked whether the new permitted use that allows for dissemination of materials by the Government would also allow such content to be incorporated or compiled into an existing publication.

The short answer is yes. Copying it, whether a part of it or the entirety of the materials is allowed if done for the permitted purposes and the permitted use does not prevent any parts that are copied from being combined along with other materials.

On fair use, Mr Don Wee, Mr Lim Biow Chuan and Ms He Ting Ru had some questions on the changes that we have made to fair use. Let me just explain the changes and then, take the Members of the House through how this is contemplated to work with the Courts.

The question that has been asked is whether fair use has been reworked into an open-ended exception that requires the Courts to make a determination on a case-by-case basis and whether, with the fifth factor removed, the point that Mr Wee specifically bought up, we are now providing less guidance to the Courts.

Let me assure both Mr Wee and Ms He that this provision has always been an open-ended one, requiring a case-by-case determination by the Courts, even on the existing regime in the present Copyright Act.

I would also add that despite dropping the fifth factor, the Courts can still consider that factor when relevant. We dropped the fifth factor because there was market feedback by stakeholders that it lent itself into confusion. Because of the language and because of the way in which it was framed, users had assumed, in many cases, wrongly, that they first had to procure a licence before they could get within the rubric of the fifth factor.

Members would also know that clause 191 requires the Court to consider "all relevant matters" in deciding whether a work or a performance is fairly used.

So, the removal of the fifth factor simply means that the Court only needs to consider that factor when it is of the view that that factor is relevant. So, it does not make it irrelevant. What the current Bill does is it provides for the four factors, the Court considers all four factors. But in the appropriate case or in such cases which are particularly fact-sensitive, the Courts can still consider this.

And in fact, this is what the Chief Justice said in a leading Court of Appeal decision in Global Yellow Pages. The Court of Appeal, without taking Members through the decision in detail, opined that looking at fair dealing as it currently is called, is overall highly fact-sensitive inquiry that has to have regard to all the circumstances. All the factors must be considered but the Court, of course, understands the facts, ascertains the context, looks at the parties' relative position and then, assigns the appropriate weight to each factor and makes an overall determination whether a dealing is fair or otherwise.

So, this approach will continue and the Court will have regard to each case, looking at the facts. And I think if you look at the construct of the fair use exceptions, this is precisely what it is intended to do – to allow the Courts, the adjudicators to look at the specific factual matrix behind each contention for exception or for use.

Next, let me touch on the CMOs which several Members spoke about.

Mr Lim Biow Chuan asked whether the Government would be regulating the amount of royalties to be paid to CMOs and what recourse users have if the amount is unreasonable. Mr Shawn Huang asked how the regulations could affect foreign CMOs. Mr Raj Joshua Thomas suggested that CMOs may need more time to adapt to the regulations and it should not be too onerous as to be prohibitive to new entrants.

As I mentioned briefly earlier, our regulations proposed in this Bill do not control the prices which CMOs charge. The Copyright Tribunal will continue to hear disputes over reasonableness of licence fees. That was the case and will still be the case.

Clause 459 of the Bill clarifies that the new regulations will apply to any CMO who offers licences to users in Singapore. However, foreign CMOs who represent local rights owners, but offer licences to users overseas, will not be subject to the new regulations.

I also mentioned the timeline for these regulations. The provisions for regulating the CMOs will only be implemented later after a further public consultation on licence conditions next year. This will give CMOs more time to make the necessary adjustments to regulation.

We are mindful that the CMOs might need the extra time and we are continuously engaging with them and have done so since our CMO public consultations started a few years ago. So, I can assure Mr Thomas that the scheme will be a light-touch class licensing regulatory framework. And we similarly want to encourage new entrants in this area with innovative solutions.

Regulations, as some Members have pointed out, will provide clarity to all, but at the same time, we do not intend to make it burdensome to CMOs who operate in a responsible and accountable manner.

To achieve the right balance in our regulations, we have considered the experience of other countries and international precedents in WIPO's Good Practice Toolkit for CMOs.

Finally, Mr Wee had some concerns that the use of the term "permitted uses" to describe exceptions may lead to confusion.

The term simply means that the user is permitted to do an act under the law. Clause 183 explains that an act that is a permitted use is not a rights infringement. This will help to prevent misunderstandings about the use of that term.

Let me now touch on some of the suggestions raised by Members.

Ms Ng Ling Ling suggested that persons with intellectual disabilities and audio disabilities could have similar levels of permitted uses as persons with print disabilities and also that permitted uses should all be made mandatory. Mr Patrick Tay asked whether there could be a one-stop publishing house dealing with all the IP rights. Ms Yeo Wan Ling spoke about models that need to have some form of protection as well. Assoc Prof Jamus Lim spoke about permitted use for publicly-funded research, which I believe I responded to earlier in the context of fair use. Mr Raj Joshua Thomas suggested that we consider legislation that can determine the ownership of AI-generated works. And Ms He Ting Ru had a suggestion on mandating royalties.

We will study these suggestions. These are all suggestions that are not covered in this Bill but we will study them and decide at the appropriate stage whether they can be implemented or they can be implemented with modifications.

I want to tell Members of this House that our review of the copyright regime does not stop with the passing of this Bill. We will continually review, particularly given that we are dealing with an industry sector that is very fast changing and fast moving, and will take on board suggestions as they come in for our continual review.

Mr Wee had a suggestion that went beyond this framework, on whether there could be a valuation and financing framework for collateralising copyright. I will just touch on this briefly.

I recently spoke at the launch of the Singapore IP Strategy 2030 during this year's IP Week @ SG event, outlining the efforts on valuation of IP. I believe this is an opportune suggestion. Singapore will be involved with an international valuation panel to develop valuation guidelines for intangible assets and IP. The guidelines will be based on internationally accepted standards that can be then widely adopted internationally and they will help rights owners commercialise and maximise the value of their IP, including through collateralisation.

Finally, Sir, Members have brought up some points in relation to how these changes could be communicated to the relevant stakeholders.

Mr Patrick Tay had various suggestions for freelancers and the general public. Mr Raj Joshua Thomas and Mr Lim Biow Chuan urged that there must be public education on the change in the default ownership rules for certain commissioned works. And I think Members were particularly taken with the point about photography and wedding photographs, in particular. It was an example that came up with more than once. We agree and we will do so.

Mr Yip asked what the Government would be doing to build up a culture of acknowledging sources and identifying creators in our schools, given the new permitted use of freely available materials from the Internet for educational purposes which requires acknowledgment of the source as a condition.

As I mentioned earlier, we will be reaching out to the various stakeholders to help them understand their new rights and will also be working with them to make sure that the broader public is kept informed. For example, we will work with the National Arts Council and NTUC to educate creators and performers. We will work closely with MOE to ensure that teachers and students are aware of the details of the new permitted use. For changes which affect a broad spectrum of stakeholders, like the changes in default ownership of commissioned works or the new right to be identified, we will reach out through various channels, infographics, social media and public talks, to make sure that information is disseminated.

I would like to also take the opportunity to ask my fellow Members here to help disseminate the information as well in your respective constituencies. IPOS has put up materials on their website, explaining the changes. Members can avail themselves of online resources and bring them to the attention of members in their constituencies.

Assoc Prof Jamus Lim asked what we do with Parmesan cheese and whiskey. Assoc Prof Lim might know that this is not within the purview of this Bill. That had been covered in the previous Geographical Indications Act, which we had passed earlier and amended last year. But I would like to assure the House that it does not stop local producers from producing. You just cannot call it a name that otherwise bears a reference to a location.

When Ms He Ting Ru closed her speech, she mentioned clauses 141 and 142 on penalties, but then quickly segued into talking about the cost of foreign sports programmes being broadcast on TV. I think Ms He knows that this is also not relevant to this Bill. This is the result of exclusivity of negotiated broadcast, licences and rights, and it is not an issue that this Bill can fix.

Indeed, the point here is you cannot remove copyright. You cannot take away the copyright because, quite frankly, if you do, then the content will simply not come into Singapore. So, it is quite a different debate altogether that Ms He has raised on this issue. It is not germane to this Bill and I would not say anything beyond this.

Mr Speaker, I would like to thank all the Members who have spoken. I think all of the Members who have spoken support the Bill. I would like to reiterate and underscore the point that this Bill seeks to navigate a fine balance between public interest access, having more access and ensuring that content creators are properly remunerated and their rights are protected. This Bill represents our commitment to ensure that balance between rights owners and the users. We continue to chart a path that is both fair and reasonable to both sides of the equation. We do this in the context of the technological and the market changes that are constantly occurring. Mr Speaker, with that, I beg to move.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr Edwin Tong Chun Fai].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clauses 1 to 246 inclusive ordered to stand part of the Bill.

Clause 247 –

The Chairman: Clause 247, Minister for Law.

Mr Edwin Tong Chun Fai: Mr Speaker, I beg to move that the amendment* standing in the name of the Minister for Law, as indicated in the Order Paper Supplement. I had addressed in my opening speech the reasons for making the amendments to clause 247.

*The amendment reads as follows:

In page 168, lines 9 and 23: to leave out "copyright", and insert "rights".

Amendment agreed to.

Clause 247, as amended, ordered to stand part of the Bill.

Clause 248 –

The Chairman: Clause 248, Minister for Law.

Mr Edwin Tong Chun Fai: Mr Speaker, I beg to move that the amendment* standing in the name of the Minister for Law, as indicated in the Order Paper Supplement. I had also addressed the reasons for making this amendment in my opening speech.

*The amendment reads as follows:

In page 169, line 12: to leave out "copyright", and insert "rights".

Amendment agreed to.

Clause 248, as amended, ordered to stand part of the Bill.

Clauses 249 to 541 inclusive ordered to stand part of the Bill.

Bill reported with amendments; read a Third time and passed.