Copyright - Part 1 PDF

Corporate & Commercial Practice Intellectual Property Copyright Subject Matter Protected By Copyright Intellectual Property Office of Singapore Subject matter protected Copyright Act 2021 Protects “work(s)” Section 8 definition of “work”:...

Corporate & Commercial Practice Intellectual Property Copyright Subject Matter Protected By Copyright Intellectual Property Office of Singapore Subject matter protected Copyright Act 2021 Protects “work(s)” Section 8 definition of “work”: – authorial work, published edition of an authorial work, sound recording, film, broadcast or cable programme Copyright © 2024, Singapore Institute of Legal Education Subject matter protected Authorial Works Non‐authorial Works (see s 9 and also ss 10 to 20) (ss 21 to 36) Literary works Sound Recordings (novels, poems, writings, computer programs, (songs on a CD, vinyl records) “creative” compilations or databases, multimedia works) Includes compilations and computer programs Dramatic works Films (motion pictures in VCDs and DVDs), formerly (film scripts, choreography in writing) known as “cinematograph films” in the previous Copyright Act Musical works Broadcasts (non‐examinable) (music scores) (TV, radio) Artistic works Cable Programmes (non‐examinable) (painting, sculptures, photographs, buildings) (StarHub) Published Editions of Works (non‐examinable) (typographical arrangement i.e. the format) Copyright © 2024, Singapore Institute of Legal Education Subject matter not protected Ideas Concepts Discoveries Procedures Methods Copyright © 2024, Singapore Institute of Legal Education Requirement of fixation Needs to be in material form Usually in writing Can be electronic storage or any other fixed medium – Fixed does not mean immutable or permanent; deletion or removal does not destroy copyright because the right is not in the medium Copyright © 2024, Singapore Institute of Legal Education Copyrights to subsist independently The bundle of rights within “Copyright" subsist independently of each other – E.g. a movie on a streaming service may comprise (or be associated with) various rights e.g. film, sound recordings, artistic works (e.g. theatrical poster, screen shots), literary works (script, etc.), dramatic work, and so on. Copyright © 2024, Singapore Institute of Legal Education Intellectual Property Copyright Criteria For Copyright Protection Criteria for protection Copyright subsists only by virtue of the Act Automatic protection, no need for registration Key Requirements: (1) Subject matter must be capable of being protected by copyright in the first place (i.e. fits into recognised category of work) E.g. literary, dramatic, artistic, musical, sound recording, film… For authorial works, work needs to be original (2)Valid connecting factor between subject matter and Singapore Copyright © 2024, Singapore Institute of Legal Education Criteria for protection Published authorial works: subsistence & connecting factors Must be original work and any one of the following applies:  Author = qualified individual (SG citizen / SG resident) when work first published;  Work first published in Singapore; or  Work was first published in a “reciprocating country” (i.e. party to Berne Convention or member of WTO) to which the Copyright Act 2021 extends protection: see s 3 read with Part 2 of the Copyright Regulations 2021 Copyright © 2024, Singapore Institute of Legal Education Criteria for protection In practice Rare to see litigation relating to failure to establish connecting factor Reason: reciprocal protection accorded by Berne Convention / TRIPS Agreement; not that many countries fall outside the scope of these multilateral treaties – In other words, even if cannot establish connection to Singapore, usually connection to some other reciprocating country can be established. – Of course, this is separate from issues of ownership/infringement/duration which would have to be assessed by reference to the law of the country of origin. Subsistence challenges usually relate to lack of “originality” Copyright © 2024, Singapore Institute of Legal Education Criteria for protection Some Issues Specific to Authorial Works 1. Originality 2. Authorship 3. Reduction to Material Form Copyright © 2024, Singapore Institute of Legal Education Criteria for protection 1. Originality Global Yellow Pages Ltd v Promedia Directories Pte Ltd and anor matter 2 SLR 185 (SGCA) Application of intellectual effort, creativity or exercise of mental labour, skill or judgement by the author Intellectual effort applied towards authorial creation vs preparatory steps Sufficiency of intellectual effort is one of “fact and degree” Copyright © 2024, Singapore Institute of Legal Education Criteria for protection 1. Originality Main rule: originate from author and no one else PropertyGuru Pte Ltd v 99 Pte Ltd SGHC 52: Work derived from some other work Need for material alteration or embellishment to the original work Copyright © 2024, Singapore Institute of Legal Education Criteria for protection 2. Authorship Global Yellow Pages Ltd v Promedia Directories Pte Ltd and anor matter 2 SLR 185 (SGCA): Intellectual effort in “authorial creation” necessary for originality Asia Pacific Publishing Pte Ltd v Pioneers & Leaders (Publishers) Pte Ltd 4 SLR 381 (SGCA): Author must be human Since no humans identified as authors, there was no “original” work in which copyright subsists to be capable of ownership. Copyright © 2024, Singapore Institute of Legal Education Criteria for protection 3. Reduction to Material Form Express requirement for literary, dramatic and musical works to be reduced to writing or some other material form: s 16 Implicit requirement for artistic works to be reduced to material form: s 20 Works reduced to material form include those Embodied in sound recordings/ cinematograph films Stored in a computer or any medium by electronic means Copyright © 2024, Singapore Institute of Legal Education Criteria for protection 3. Reduction to Material Form Non‐authorial works would be “embodied” (see e.g. s 21 sound recording, s 24 films) in another medium e.g. a record, article, thing, etc. This also satisfies the requirement Copyright © 2024, Singapore Institute of Legal Education Intellectual Property Copyright Ownership First ownership rule General Rule The author of an authorial work is the first owner of its copyright: s 133(1)(a) Similar position for non-authorial works: rest of s 133(1) Copyright © 2024, Singapore Institute of Legal Education Can be varied by contract Contract General rule can be varied by contract: s 133(3) Can also contract the ownership of future copyright: s 140 Copyright © 2024, Singapore Institute of Legal Education Employment scenario Where work is created by employee in the course of employment, default position is the employer owns the copyright: s 134(3) However, depends on written agreement: s 134(5) In practice, fact-specific enquiry whether the author is an employee or an independent contractor Copyright © 2024, Singapore Institute of Legal Education Commissioned works Old Copyright Act Under Copyright Act 1987, the commissioning party who commissions certain types of works is the default copyright owner (non-examinable) Current Copyright Act Copyright Act 2021 maintains the above position only for works commissioned before the “appointed day”, 21 Nov 2021 (when CA 2021 came into force): s 135 Works commissioned on or after 21 Nov 2021: s 133 Copyright © 2024, Singapore Institute of Legal Education Assignment Formalities In writing, signed by or for the assignor: s 138 Partial Assignment Possible for assignment to be limited (partial): s 139 e.g. by the type of right e.g. to a part of a type of right e.g. to a part of the duration Because copyright is valid across most of the world, a real life assignment may also assign rights according to jurisdiction Copyright © 2024, Singapore Institute of Legal Education Licence Formalities for exclusive licence In writing, signed by or for the licensor: s 142 Successors in title Successors in title which are not the government or not a public body : s 143(b) Bound by licence Unless a bona fide purchaser (“purchased the title in good faith for valuable consideration and without actual or constructive notice of the licence”) Or unless a person who derives title from the above Copyright © 2024, Singapore Institute of Legal Education Notice Copyright © 2024, Singapore Institute of Legal Education. All rights reserved. The Course materials are developed by the Singapore Institute of Legal Education, based on the content, syllabus, and guidance provided by the Chief and Principal Examiners and their teams. No direct or indirect reproduction, publication, communication to the public, adaptation or any other use (that is prohibited and/or proscribed by copyright laws) of the Course materials in whole or in part in any form or medium is allowed without the written permission of the Singapore Institute of Legal Education. Part B Candidates should refer to the Code of Conduct for more information, particularly, the sections on conduct and behaviour, and the use of SILE resources.