Singapore recently overhauled its copyright regime to adopt a new act in 2021. The 1987 Act was entirely reorganized to enhance protection of copyright in view of the various technological developments, which have greatly impacted how copyright works are created, shared, accessed and used. The new law also aims to future-proof the regime to cater to future technological developments. The aim has also been to restructure and reword the legislation in plain English, to enhance its clarity and accessibility. The Act adopts a more intuitive, thematic structure and provides illustrations to show how provisions should be applied in particular situations.
Differences between the Singapore Copyright Act, 2021 (SG Law) and the HK Copyright Ordinance – Cap. 528 (HK Law) are elaborated below:
1. Ownership of Copyright in Commissioned Works
Under the HK Law, literary, dramatic, musical and artistic works created on a commission basis, are governed by the commissioning agreement between the author and the commissioner of the work[1]. Irrespective of the commissioning agreement between the parties, the person/ organisation who commissioned the work, would still have an exclusive right to exploit the commissioned work for the reasonably contemplated purposes of commissioning work. Moreover, he even has the power to restrain others from exploiting the commissioned work for any purpose[2].
Under SG Law however, creators of photographs, portraits, engravings, sound recordings, songs, computer graphics, books, or films will by default be the first owner of copyright, even if they were commissioned to make those works. The parties do have the freedom to contract to the contrary[3].
2. Illicit media streaming devices or services
HK Law does not have any provision under the copyright law which governs the manufacture, distribution or sale or offering of illicit media streaming devices or services which facilitate access to unauthorised copy of a copyrighted work.
SG Law stipulates that making, dealing, importing, distributing a device (like a component or a computer program) or offering or providing a service which is capable of facilitating access to an unauthorised copy of a copyrighted work, is infringement of copyright. This includes websites which host infringing content or instructions for devices to provide access to infringing content like unauthorised set top boxes[4].
3. Remuneration rights when sound recordings are broadcasted or publicly performed
HK Law gives the following rights to a sound recording copyright owner (i) make a copy of the recording; (ii) enter into a commercial rental arrangement in respect of the recording; (iii) performance of work in the public; (iv) broadcasting or inclusion in a cable programme; (v) publish the recording, if unpublished; (vi) be named in a statement to the public if copies of the sound recording is made available to the public[5].
SG Law entitles a sound recording copyright holder to transmit work by electronic means including broadcasting the work, including it in a cable program, and making it available in a way that may be accessed by any person on demand. This means the copyright owner will also have the right to control dissemination of the recording by digital audio transmission and analogue transmission and broadcasting. SG Law also entitles such a copyright holder to receive equitable remuneration when the recording is caused to be heard in public for commercial purposes. So, businesses playing recorded music in restaurants, hotels, shops, etc. would be required to obtain licenses for public performances of sound recordings, as well as a license for public performance of underlying musical composition and lyrics in the sound recording. However, this right does not arise in certain circumstances, including:
- where the public performance is carried out by receiving a broadcast (e.g. by playing music through the radio);
- where the public performance of the sound recording constitutes fair use; and
- where the sound recording is performed by students or staff of an educational institution, in the course of that institution’s activities, to an audience limited to those directly connected with that institution[6].
4. Computational Data Analysis Exception
SG Law provides for a new exception to infringement which permits copying of copyright works for computational data analysis like sentiment analysis, text and data mining, training machine learning. However, certain conditions and safeguards have been imposed like:
- the user cannot share copies of the works with others, except for verifying the results of the computational data analysis or for collaborative research or study relating to the purpose of such analysis;
- the user must not use copies of the works made under this exception for any other purpose;
- the user must have lawful access to the works to be copied; and
- the work from which copies are made must not itself be an infringing copy (unless the use of infringing copies is necessary for a prescribed analysis) or, if it is an infringing copy:
- the user must not know this; and
- if that copy was obtained from a flagrantly infringing online location, the user must not know (or reasonably have known) that[7].
HK Law does not provide an exception for use of copyrighted material for computational data analysis. Therefore, activities that involve incidental extraction or copying of data from large materials protected by copyright, would normally constitute infringement
5. New exception for Public Cultural Heritage Institutions
The HK Law exceptions for cultural institutions do not provide for certain activities required for their proper functioning, e.g. facilitating the exhibition of their collections. Because of inconsistencies in the way these exceptions apply to different types of institutions (even though they all similarly perform preservation and exhibition work), there is a lack of understanding about which and how exceptions apply to different types of institutions, which translates to their underutilisation[8].
SG Law has added an exception to infringement related to public cultural heritage institutions which support galleries, libraries, archives and museums in carrying out certain activities related to their public collections such as:
- copying for administrative purposes (e.g. preservation, internal record-keeping, and cataloguing); and
- activities relating to the exhibition of their collections (e.g. exhibiting a replica when the original is being restored, or taking photographs of a painting for publicity materials such as posters).
These copies must be made at a quality and to an extent that is substantially lower than the original material (i.e. they must not be a reasonable substitute for the books themselves). Further, the library must not use those copies for any other purpose. It must not sell them as merchandise. If it charges any fee for the copies (or any material that includes those copies), such a fee must be on a cost-recovery basis only[9].
6. Permitted uses cannot be Contracted out of
Under SG Law, there are a few situations exempted from being tagged as infringement of copyright and some of these exemptions cannot be contracted out of. These are:
- Exceptions for computer programs;
- the new exception relating to computational data analysis;
- exceptions relating to judicial proceedings and legal advice; and
- the exceptions relating to the work of galleries, libraries, archives, and museums, save for the exception relating to interlibrary/archive loans[10].
For other types of exceptions, fair and reasonable terms in negotiated contracts can control as to whether an exception can be used. For example, users who must agree to “click-through contracts” which they cannot negotiate on will still be able to rely on copyright exceptions despite any contractual term to the contrary. These changes give users greater certainty as to whether they can rely on an exception if the terms of a contract purport to exclude or restrict the exception.
There is no such provision under HK Law.
7. Duration of Copyright Protection for Unpublished Works
HK Law protects unpublished work such as engravings, photographs, films, sound recordings for 50 years from the end of the calendar year in which the new copyright provisions come into force[11].
SG Law now provides that unpublished work would no longer enjoy perpetual copyright protection.
- Authorial works (with known authors) will be protected for 70 years from the death of the author.
- Films and anonymous or pseudonymous works will be protected for 70 years from the making of the work, the making available of the work to the public, or first publication, depending on whether and (if so) when these acts are carried out.
There will be a transitional period that ends on 31 December 2022 (i.e. slightly more than 1 year after the Act’s implementation date). Works published during this transitional period will enjoy a longer duration of protection than if they were to be published after the period[12].
8. Publication of Material by Government
HK Law provides that fair dealing with performance or fixation by the Government, the Executive Council, the Judiciary or any District Council for the purposes of efficient administration of urgent business does not amount to infringement of copyright[13].
However, SG Law provides that materials held by the Government or public agencies which are provided to the public can now be copied and further made available, without infringing copyright, when the use is to facilitate the public interest reasons for why they have been made public[14].
9. Collective Management Organizations to strengthen the Copyright Ecosystem
SG Law regulates collective management organizations (CMOs) through the Intellectual Property Office of Singapore. CMOs are organizations which manage the use of copyright works or protected performances (or both) for multiple copyright holders. SG Law requires them to comply with minimum standards on transparency, governance, accountability and efficiency. Penalties will be imposed on CMOs and/or their officers who breach such standards. This aims to benefit both members of CMOs (such as songwriters and lyricists) as well as users who take licences from CMOs, and contribute to building a fair and efficient copyright ecosystem[15].
HK Law does not provide for any such organizations.
10. Safe Harbour provisions
SG Law provides for protection of network service providers against allegations of copyright infringement for infringing content shared on their network or online service platforms at the instance of users[16].
HK Law does not provide for such exemptions.
Please note that this is a general summary of the position under the Laws of Hong Kong SAR and does not constitute legal advice.
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[1] HK Law, Section 14 and 15
[2] HK Law, Section 15(2)
[3] SG Law, Section 135
[4] SG Law, Section 150
[5] HK Law, Sections 23, 25, 28, 27, 34 and 272O
[6] SG Law, Sections 61, 62, 75 and 121
[7] SG Law, Sections 243 and 244
[8] HK Law, Section 53, 246
[9] SG Law, Section 221-236
[10] SG Law, Section 186
[11] HK Law, Section 13
[12] SG Law, Section 115
[13] HK Law, Section 246A
[14] SG Law, Section 285-287
[15] SG Law, Section 459-467
[16] SG Law, Sections 313-324