Copyright (Amendment) Bill 2005
Second Reading Speech by Deputy Prime Minister and Minister for Law, Prof S Jayakumar.
1. Mr Speaker, Sir, I beg to move, "That the Bill be now read a second time."
Background
2. As background, Members of the House may recall that in November last year, we amended the Copyright Act to strengthen our copyright regime, and to ensure that it remained relevant in the face of technological advancement. Several of the amendments were also to fulfil the copyright aspects of our US-Singapore Free Trade Agreement obligations.
3. The Bill, Sir, today seeks to clarify and refine the law to address issues in the implementation of some of the provisions in the Copyright Act. This is in response to feedback received after the last round of amendments came into force in January this year. Due to the very fast pace of developments in digital technology in an online environment, but let me say that we can expect refinements to the law to deal with practicalities that arise from time to time.
4. Sir, we made available a consultation draft version of the Bill on the website of the Intellectual Property Office of Singapore from 21 March to 19 April this year. All feedback, including responses from IP rights organisations and user groups, were carefully considered, and adjustments made to the proposed amendments, wherever appropriate.
Key Features of the Amendments
5. Let me turn to the key amendments in the Bill.
Temporary Reproductions / User Caching
6. First, amendments to the provisions dealing with temporary reproductions and user caching. Sir, when a user receives or makes an electronic communication, or surfs the Internet, incidental copies of material are automatically made on the user's computer. For example, when an Internet user visits a website, a copy of the website content is automatically made by the user's computer, primarily to speed up the loading of the webpage on a repeat visit. These copies are made automatically, and involve no direct action by the user. As such, the user should not be held liable for any copyright infringement occurring under such circumstances. Therefore, the existing Copyright Act exempts the making of such incidental copies from copyright infringement. Clauses 2, 4, 9 and 15 of the Bill amend sections 38A, 107E, 193E and 252D respectively to clarify, for avoidance of doubt, that the exemption only applies to short-lived incidental copies, and not to long-lasting copies even if they are made automatically.
7. Mr Speaker, Sir, Clauses 2 and 4 of the Bill also stipulate that the exemptions under sections 38A and 107E do not apply if the material or the communication itself is infringing. In addition, these provisions do not authorise any subsequent use of the short-lived incidental copies. These conditions are further safeguards, Sir, against abuse of the exemptions which are intended for cases of innocent technical copying.
Limitation of Network Service Provider (NSP) Liability
8. Next, let me turn to limitation of liability for Network Service Providers or NSPs. Sir, under the existing framework, NSPs must satisfy certain conditions to qualify for exemption from liability to the copyright owner for monetary relief. The proposed amendments affect two of these conditions, namely the issue of acquisition of knowledge and the issue of financial benefit.
Acquisition of Knowledge
9. On the acquisition of knowledge, a condition for exemption from liability to the copyright owner for monetary relief is that if an NSP has knowledge of the infringing material on its network or on another network to which it refers or links a user, the NSP must expeditiously take reasonable steps to remove or disable access to this material.
10. Currently, there are two conditions which must be satisfied before an NSP which is not an individual will be treated as having any knowledge. First, the actual or constructive knowledge must be acquired by a representative designated by the NSP to receive take-down notices from copyright owners. Second, any communication conveying such knowledge to the designated representative must be in the form of a prescribed notice.
11. Sir, we intend to strike a better balance between the interests of NSPs and copyright owners, and therefore clause 7 and clause 12 amend sections 193D(2), (3) and (5) and sections 252C(2), (3) and (5), respectively, to do away with the condition that the actual or constructive knowledge must be acquired by a designated representative, and to allow the notice to be substantially in accordance with the prescribed form, without the necessity for strict conformance.
Financial Benefit
12. Then I turn to another condition for an NSP to qualify for limited liability, that it must not receive any financial benefit directly attributable to the infringement.
13. Sir, the Copyright Act currently sets out the conditions that determine if an NSP has received financial benefit. First, financial benefit does not include any benefit the NSP receives merely for providing online services. Second, financial benefit can only be said to be linked directly to the infringing activity if the NSP knew at the time it received the benefit that copyright infringement was involved.
14. However, Sir, NSPs may be able to profit from infringing activity while still enjoying limited liability. Therefore, clauses 7 and 12 amend sections 193D(6) and 252C(6) to replace the two conditions with factors which the courts can now consider in determining whether a financial benefit is directly attributable to an infringement. These factors are: firstly, the industry practices in relation to the charging of services by NSPs; secondly, whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practices; and finally, all other matters that the court considers relevant.
15. This change, Sir, gives our courts a wider discretion in determining whether, on the facts of any particular case, an NSP should enjoy limited liability and would allow new developments, and innovative services and pricing policies, to be taken into account. Overall, we believe that the amendments will provide a better balance of interests between copyright owners, NSPs and subscribers.
16. Mr Speaker, Sir, NSPs have expressed concerns that, in order to avoid or limit liability, they may, as a result of the amendments, be compelled to police their networks for infringing materials to ensure that they are not receiving financial benefit that involves infringing activities. This is because not having knowledge of infringing material will no longer automatically exempt NSPs from being considered to have received a financial benefit. Such policing could result in undue burden for NSPs.
17. To address this concern, clauses 5 and 14 provide for the new sections 193A(3) and 252CF(2), respectively, and they clarify, for avoidance of doubt, that NSPs do not need to monitor their services nor affirmatively seek facts indicating infringing activities. NSPs are also not obliged to gain access to, remove or disable access to online material where such conduct is prohibited by law.
Liability For Authorising Infringement
18. Next, I turn to NSP liability for authorising infringement. Sir, under our copyright framework, a person who "authorises" copyright infringement by the provision of facilities may, under certain circumstances, be liable to legal action. An NSP, by the nature of its business, may thus fall into this category. Sir, in order to ensure that NSPs are not subject to unreasonable accusations of authorisation liability, section 193DA(5) and section 252CA(5) of the existing Copyright Act provide that an NSP cannot be treated as having authorised an infringement simply because it has done one of three enumerated acts. They are firstly, that the NSP has provided a facility that was used by another person to carry out the infringing activity; secondly, that the NSP has received a notice informing it of an infringing activity; and thirdly, that the NSP has acquired any knowledge of the infringing activity.
19. Clauses 8(c) and 13(c) amend section 193DA(5) and section 252CA(5), respectively, to allay concerns raised by copyright owners that the current wording might be misconstrued as immunising an NSP against authorisation liability even in a clear case involving such liability. The question of an NSP being liable for authorising infringement will continue to be left to the Courts to decide, based on the facts of each case.
Restoration of Online Material
20. Let me now turn to the restoration of online material. As members may recall, the take-down and restoration procedure for NSPs provides that when an NSP receives a take-down notice from or authorised by a copyright owner relating to any material on a website, it will remove or disable access to the material if the material is on a website hosted on its network, or disable access to the material if the material is on a website hosted on another network. If the person who made available the material on the website disagrees, he can in turn file a counter-notice to have the material or access restored. If the copyright owner wishes to stop the restoration, he can institute court proceedings and inform the NSP of these proceedings before the material or access is restored. If no such action is taken, the NSP will proceed to restore the material or access.
21. Mr Speaker, Sir, the current provision does not specify the exact window within which the copyright owner must take legal action to stop the material or access from being restored, or exactly when the NSP should restore the material or access. Clauses 8(a) and 13(a) amend sections 193DA(2) and 252CA(2), respectively, to provide for specific time periods within which these actions must be undertaken by the relevant parties. Specific time periods, Sir, will give certainty to all relevant parties of the expected actions on their part.
22. Sir, the amendments also provide that if the material was removed, or access to the material was disabled, in reliance on a take-down notice, the NSP must give a copy of the counter-notice to the copyright owner (or his representative) who furnishes the take-down notice, unless prohibited by privacy or data protection laws. The particulars on the counter-notice may assist the copyright owner in determining his next course of action.
Concluding Remarks on NSP Provisions
23. Just to conclude on NSP provisions, these provisions do not mean that an NSP is automatically liable for copyright infringement and monetary relief payable to copyright owners if it chooses not to meet the conditions to qualify for limited liability. Where the conditions are not met, the NSP's liability will simply be governed by the general provisions of the Copyright Act. This position does not change with this latest round of amendments to the NSP provisions. Overall, the amendments provide a better balance between the interests of NSPs, website owners and copyright owners.
Rights Management Information and Circumvention of Technological Measures
24. Let me turn to rights management information and circumvention of technological measures.
25. Members would recall that the previous amendment to the Copyright Act criminalised certain prohibited acts in relation to rights management information and the circumvention of technological measures, if they are committed wilfully and for the purpose of obtaining a "commercial advantage".
26. Sir, Clauses 16 and 17 amend the relevant Sections 260 and 261C to expand the scope of criminal provisions to include acts wilfully committed for "private financial gain". Let me explain that this is necessary as in this digital age, it is possible for a person to potentially cause as much harm for private financial gain as for commercial purposes. The Courts will determine on the facts of each case whether the act was committed for "private financial gain".
Conclusion
27. To conclude, Sir, these amendments, most of which are fairly technical, are important, and will fine-tune and enhance our copyright regime and provide a better balance between the interests of end-users, NSPs and copyright owners.
28. Sir, I beg to move.
1. Mr Speaker, Sir, I beg to move, "That the Bill be now read a second time."
Background
2. As background, Members of the House may recall that in November last year, we amended the Copyright Act to strengthen our copyright regime, and to ensure that it remained relevant in the face of technological advancement. Several of the amendments were also to fulfil the copyright aspects of our US-Singapore Free Trade Agreement obligations.
3. The Bill, Sir, today seeks to clarify and refine the law to address issues in the implementation of some of the provisions in the Copyright Act. This is in response to feedback received after the last round of amendments came into force in January this year. Due to the very fast pace of developments in digital technology in an online environment, but let me say that we can expect refinements to the law to deal with practicalities that arise from time to time.
4. Sir, we made available a consultation draft version of the Bill on the website of the Intellectual Property Office of Singapore from 21 March to 19 April this year. All feedback, including responses from IP rights organisations and user groups, were carefully considered, and adjustments made to the proposed amendments, wherever appropriate.
Key Features of the Amendments
5. Let me turn to the key amendments in the Bill.
Temporary Reproductions / User Caching
6. First, amendments to the provisions dealing with temporary reproductions and user caching. Sir, when a user receives or makes an electronic communication, or surfs the Internet, incidental copies of material are automatically made on the user's computer. For example, when an Internet user visits a website, a copy of the website content is automatically made by the user's computer, primarily to speed up the loading of the webpage on a repeat visit. These copies are made automatically, and involve no direct action by the user. As such, the user should not be held liable for any copyright infringement occurring under such circumstances. Therefore, the existing Copyright Act exempts the making of such incidental copies from copyright infringement. Clauses 2, 4, 9 and 15 of the Bill amend sections 38A, 107E, 193E and 252D respectively to clarify, for avoidance of doubt, that the exemption only applies to short-lived incidental copies, and not to long-lasting copies even if they are made automatically.
7. Mr Speaker, Sir, Clauses 2 and 4 of the Bill also stipulate that the exemptions under sections 38A and 107E do not apply if the material or the communication itself is infringing. In addition, these provisions do not authorise any subsequent use of the short-lived incidental copies. These conditions are further safeguards, Sir, against abuse of the exemptions which are intended for cases of innocent technical copying.
Limitation of Network Service Provider (NSP) Liability
8. Next, let me turn to limitation of liability for Network Service Providers or NSPs. Sir, under the existing framework, NSPs must satisfy certain conditions to qualify for exemption from liability to the copyright owner for monetary relief. The proposed amendments affect two of these conditions, namely the issue of acquisition of knowledge and the issue of financial benefit.
Acquisition of Knowledge
9. On the acquisition of knowledge, a condition for exemption from liability to the copyright owner for monetary relief is that if an NSP has knowledge of the infringing material on its network or on another network to which it refers or links a user, the NSP must expeditiously take reasonable steps to remove or disable access to this material.
10. Currently, there are two conditions which must be satisfied before an NSP which is not an individual will be treated as having any knowledge. First, the actual or constructive knowledge must be acquired by a representative designated by the NSP to receive take-down notices from copyright owners. Second, any communication conveying such knowledge to the designated representative must be in the form of a prescribed notice.
11. Sir, we intend to strike a better balance between the interests of NSPs and copyright owners, and therefore clause 7 and clause 12 amend sections 193D(2), (3) and (5) and sections 252C(2), (3) and (5), respectively, to do away with the condition that the actual or constructive knowledge must be acquired by a designated representative, and to allow the notice to be substantially in accordance with the prescribed form, without the necessity for strict conformance.
Financial Benefit
12. Then I turn to another condition for an NSP to qualify for limited liability, that it must not receive any financial benefit directly attributable to the infringement.
13. Sir, the Copyright Act currently sets out the conditions that determine if an NSP has received financial benefit. First, financial benefit does not include any benefit the NSP receives merely for providing online services. Second, financial benefit can only be said to be linked directly to the infringing activity if the NSP knew at the time it received the benefit that copyright infringement was involved.
14. However, Sir, NSPs may be able to profit from infringing activity while still enjoying limited liability. Therefore, clauses 7 and 12 amend sections 193D(6) and 252C(6) to replace the two conditions with factors which the courts can now consider in determining whether a financial benefit is directly attributable to an infringement. These factors are: firstly, the industry practices in relation to the charging of services by NSPs; secondly, whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practices; and finally, all other matters that the court considers relevant.
15. This change, Sir, gives our courts a wider discretion in determining whether, on the facts of any particular case, an NSP should enjoy limited liability and would allow new developments, and innovative services and pricing policies, to be taken into account. Overall, we believe that the amendments will provide a better balance of interests between copyright owners, NSPs and subscribers.
16. Mr Speaker, Sir, NSPs have expressed concerns that, in order to avoid or limit liability, they may, as a result of the amendments, be compelled to police their networks for infringing materials to ensure that they are not receiving financial benefit that involves infringing activities. This is because not having knowledge of infringing material will no longer automatically exempt NSPs from being considered to have received a financial benefit. Such policing could result in undue burden for NSPs.
17. To address this concern, clauses 5 and 14 provide for the new sections 193A(3) and 252CF(2), respectively, and they clarify, for avoidance of doubt, that NSPs do not need to monitor their services nor affirmatively seek facts indicating infringing activities. NSPs are also not obliged to gain access to, remove or disable access to online material where such conduct is prohibited by law.
Liability For Authorising Infringement
18. Next, I turn to NSP liability for authorising infringement. Sir, under our copyright framework, a person who "authorises" copyright infringement by the provision of facilities may, under certain circumstances, be liable to legal action. An NSP, by the nature of its business, may thus fall into this category. Sir, in order to ensure that NSPs are not subject to unreasonable accusations of authorisation liability, section 193DA(5) and section 252CA(5) of the existing Copyright Act provide that an NSP cannot be treated as having authorised an infringement simply because it has done one of three enumerated acts. They are firstly, that the NSP has provided a facility that was used by another person to carry out the infringing activity; secondly, that the NSP has received a notice informing it of an infringing activity; and thirdly, that the NSP has acquired any knowledge of the infringing activity.
19. Clauses 8(c) and 13(c) amend section 193DA(5) and section 252CA(5), respectively, to allay concerns raised by copyright owners that the current wording might be misconstrued as immunising an NSP against authorisation liability even in a clear case involving such liability. The question of an NSP being liable for authorising infringement will continue to be left to the Courts to decide, based on the facts of each case.
Restoration of Online Material
20. Let me now turn to the restoration of online material. As members may recall, the take-down and restoration procedure for NSPs provides that when an NSP receives a take-down notice from or authorised by a copyright owner relating to any material on a website, it will remove or disable access to the material if the material is on a website hosted on its network, or disable access to the material if the material is on a website hosted on another network. If the person who made available the material on the website disagrees, he can in turn file a counter-notice to have the material or access restored. If the copyright owner wishes to stop the restoration, he can institute court proceedings and inform the NSP of these proceedings before the material or access is restored. If no such action is taken, the NSP will proceed to restore the material or access.
21. Mr Speaker, Sir, the current provision does not specify the exact window within which the copyright owner must take legal action to stop the material or access from being restored, or exactly when the NSP should restore the material or access. Clauses 8(a) and 13(a) amend sections 193DA(2) and 252CA(2), respectively, to provide for specific time periods within which these actions must be undertaken by the relevant parties. Specific time periods, Sir, will give certainty to all relevant parties of the expected actions on their part.
22. Sir, the amendments also provide that if the material was removed, or access to the material was disabled, in reliance on a take-down notice, the NSP must give a copy of the counter-notice to the copyright owner (or his representative) who furnishes the take-down notice, unless prohibited by privacy or data protection laws. The particulars on the counter-notice may assist the copyright owner in determining his next course of action.
Concluding Remarks on NSP Provisions
23. Just to conclude on NSP provisions, these provisions do not mean that an NSP is automatically liable for copyright infringement and monetary relief payable to copyright owners if it chooses not to meet the conditions to qualify for limited liability. Where the conditions are not met, the NSP's liability will simply be governed by the general provisions of the Copyright Act. This position does not change with this latest round of amendments to the NSP provisions. Overall, the amendments provide a better balance between the interests of NSPs, website owners and copyright owners.
Rights Management Information and Circumvention of Technological Measures
24. Let me turn to rights management information and circumvention of technological measures.
25. Members would recall that the previous amendment to the Copyright Act criminalised certain prohibited acts in relation to rights management information and the circumvention of technological measures, if they are committed wilfully and for the purpose of obtaining a "commercial advantage".
26. Sir, Clauses 16 and 17 amend the relevant Sections 260 and 261C to expand the scope of criminal provisions to include acts wilfully committed for "private financial gain". Let me explain that this is necessary as in this digital age, it is possible for a person to potentially cause as much harm for private financial gain as for commercial purposes. The Courts will determine on the facts of each case whether the act was committed for "private financial gain".
Conclusion
27. To conclude, Sir, these amendments, most of which are fairly technical, are important, and will fine-tune and enhance our copyright regime and provide a better balance between the interests of end-users, NSPs and copyright owners.
28. Sir, I beg to move.
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