Updated: May 24, 2020
And you thought a circuit breaker was just a little switch in your electrical circuit box.
In the island state of Singapore, circuit breaker is the new buzzword which has taken on a very different context since the COVID-19 pandemic. It refers to precautionary measures instituted to break the chain of transmission of COVID-19 in the community. Foremost among these measures is the stay-at-home exhortation – people hunkering down within the confines of their home, living lives largely online.
And just like that – as MIT Technology Review author Will Heaven put it – our internet connection has become an umbilical to the outside world. Our online existence means that we are sharing and consuming digital content more than ever before. What are the implications for copyright law?
This article unmasks some possible pitfalls of copyright law in connection with the current digital trends; and – as an enhanced measure – we also look at further initiatives which are being rolled out to strengthen our copyright framework for these times, and beyond.
Stay home, stay connected
With an estimated 50% of the world's population in some form of "lockdown", the result is an unprecedented surge in internet activity and consumption of digital content. Forbes reported on 25 March 2020 that total internet hits have surged by between 50% and 70% according to preliminary statistics, while online streaming has increased by an estimated 12% at least. There is little doubt that these figures have likely increased at the time of writing.
Of course, the tech-savvy among us have long been harnessing social media platforms and other online tools to market, advertise and transact. So going digital is by no means a new phenomenon; but there has probably never been a more compelling time to do so. And it is not just businesses jumping on the digital bandwagon but the everyday consumer who is now living online.
Photographs, musical compositions, movie streaming, concerts, business presentations, lectures and tutorials, instructional materials, lesson plans, culinary demonstrations, fitness workouts – these are just some of our digital content consumed online, at work or at play. Communication tools like Zoom, Microsoft Teams and Google Meet facilitate the real-time sharing of 'live' content, keeping us connected even as we remain physically apart.
What are some takeaways concerning the copyright implications of such sharing and consumption of online content? Here are some possible pitfalls:
For licensees shifting their business online Given the myriad of ways in which content is accessed, used, distributed and broadcasted, licensees should review their existing contracts to ensure that they operate within the scope of their contractual rights. Fresh licenses or an amendment of the contract should be sought from licensors, where necessary. For instance, a dance studio may only have conducted physical lessons and therefore only obtained a licence to play music tracks in their premises. If the dance studio now wishes to also conduct online lessons, it should consider if it has the relevant rights to use these soundtracks in its digital classes.
Having safely distanced ourselves from these pitfalls, let us look more generally at our copyright framework in terms of new initiatives to enhance the relevance and effectiveness of an old law.
Copyright law in a "new normal": old wineskins for new wine?
U.S. District Judge Katherine Forrest in Goldman v Breitbart famously commented that "[w]hen the [U.S.] Copyright Act was amended in 1976, the words 'tweet' and 'viral' invoked thoughts of a bird and a disease…". These sentiments reflect the challenge of containing an ever evolving digital realm within an old legal framework (although, perhaps in one respect at least, the word 'viral' has come full circle to once again invoke thoughts of a physical ailment).
The Singapore Copyright Act (Cap 63) was enacted more recently than the U.S. Copyright Act amendments. However, that was still more than 30 years ago, before the advent of the Internet – which, in the digital economy of things, is down-right archaic. It most certainly did not contemplate online content sharing. Nevertheless, piecemeal legislative amendments have been introduced over the years to address discrete issues which have arisen as a consequence of technological development. For instance, provisions were introduced to the Copyright Act in 2014 to exempt online intermediaries from liability for copyright infringement in certain circumstances, and in 2016 to allow right holders to apply for injunctions to compel internet service providers to block access to websites which flagrantly infringe their copyright.
Aside from legislative changes, Singapore courts have affirmed that the provisions of the Copyright Act should be interpreted in a technologically-sensitive manner, and in a way that protects works created in the virtual space as much as it protects traditional works. These pronouncements embody the spirit of ensuring that the Copyright Act remains relevant in our brave new world.
A time for reform
In addition, new initiatives are being rolled out by the Ministry of Law for broad-based reforms to better support creators and enhance the enjoyment of creative works in this digital age. The amendments are expected to come into force in the later part of 2020. We highlight several proposals which are particularly relevant to our new work/study/play-from-home arrangement:
Studying from home A new exception seeks to allow works which are freely accessible online to be used for educational purposes, as long as the creator of the work is properly attributed. This supplements the existing educational exceptions, which generally allowing copying and communication of works up to a "reasonable portion" subject to the need to pay an equitable remuneration to the copyright owner. As schools faced mandatory closures, this exception will greatly benefit educators and students, and add to the resources to facilitate home-based learning. More broadly, it is also proposed that such exceptions to copyright infringement be conferred enhanced protection under copyright laws. There have been attempts (for instance, website terms and conditions or end-use licence agreements) to exclude the operation of these exceptions. Contractual carve-outs will be prohibited under the new copyright laws, to maintain the balance between the public's right to use, access and enjoy the work, and the copyright owner's right to reap commercial returns from and exercise creative control over their works.
Working from home Unlike some other countries, the concept of "moral rights" (of the creator of a copyrighted work) is not currently recognised in Singapore. In particular, there is no right of attribution; only a right to prevent false attribution of a work. With the turn of the digital age, it is proposed that creators should be acknowledged for their role in creating the work, regardless of whether they still own the copyright. The proposal states that "proper attribution helps creators and performers build their reputation and incentivises creation of new works. This is especially important in the digital era, where works are easily misattributed or not attributed at all". The right of attribution becomes even more significant as many creators/copyright owners choose to make their works available for free during this period of lockdowns.
Playing from home Under the new proposals, civil and criminal liability will be imposed against persons who wilfully make, import for sale, or distribute a product which may be used for unauthorised streaming. These include illicit streaming devices or software applications. As illegal streaming remains rampant in Singapore and enforcement against online piracy is very much a whack-a-mole effort as many of the pirates are fly-by-night companies which readily disappear into the woodwork only to pop up again elsewhere, this will be a very welcome additional tool in the enforcement arsenal. It is also proposed that similar penalties be imposed on users of such unauthorised streaming devices. With the introduction of more severe criminal and financial penalties coupled with the risks of falling prey to cyber-crime and data theft, users may find that it is much wiser to pay for consumption of copyrighted material from legitimate sources (instead of resorting to sites like Nites.tv which may not be authorised to stream such content).
Even during this period of uncertainty, it is prudent to be mindful of copyright laws. Some may question the ethics around enforcement during such unprecedented times – individuals and businesses seeking compensation for infringement may be seen as opportunistic, and could incur public backlash if they appear to be profiting from this crisis. However, a strong intellectual property framework can serve as a powerful tool to help us adapt to technological change and spur economic recovery, as long as it is wielded fairly. Copyright remains an important intangible asset that businesses and entrepreneurs rely on to enhance their competitive edge and generate revenue, especially once this storm blows over.
For further information, please contact:
Pin-Ping Oh, Bird & Bird