Copyright - Part 2 PDF

Corporate & Commercial Practice Intellectual Property Copyright Exclusive Rights Intellectual Property Office of Singapore Nature of Copyright Negative right Exclusive right to exclude or authorise others in relation to an act: s 108(1)(a) N...

Corporate & Commercial Practice Intellectual Property Copyright Exclusive Rights Intellectual Property Office of Singapore Nature of Copyright Negative right Exclusive right to exclude or authorise others in relation to an act: s 108(1)(a) Not a positive right to do an act e.g. reproduce a work, despite having the right to be paid equitable remuneration: ss 108(1)(b), 108(2) Copyright © 2024, Singapore Institute of Legal Education Exclusive Rights Sections 112, 113 for authorial works Section 121 for sound recordings Section 124 for films Other types of works non-examinable Copyright © 2024, Singapore Institute of Legal Education Overview of Exclusive Rights Copyright © 2024, Singapore Institute of Legal Education Right of Reproduction Sections 41 to 50 Loosely known as “copying” Common to all works Copy may be in a different material form e.g. hard vs soft copy Includes conversion between 2D and 3D form A copy of a substantial part of a work is to be treated as a copy of the work Includes temporary or incidental copying Copyright © 2024, Singapore Institute of Legal Education Right of Publication Sections 53, 55, 56, 58, 60 Loosely known as “supplying copies to the public” Relates to “unpublished” works Happens once, and then the works become “published” Not to be confused with the right to communicate Copyright © 2024, Singapore Institute of Legal Education Compare: Publication generally Publication can also be relevant to the following: As connecting factor to determine whether copyright subsists To calculate the duration of protection Copyright © 2024, Singapore Institute of Legal Education Right to Communicate to Public Section 61 To transmit by electronic means e.g. music streaming by Spotify Whether by a path through a material substance (e.g. fibre optic cable) or by wireless means Whether over only one path or a combination thereof Not to be confused with the right to publish unpublished works Excludes causing visual images to be seen or sounds to be heard: s 70, s 124(b) and (c) Copyright © 2024, Singapore Institute of Legal Education Right to Perform in Public Section 67 Includes visual / aural presentation delivery of authorial work by way of a lecture etc. Not to be confused with the right to communicate Cf. Section s 124(b) and (c) Films Right to cause visual images of film to be seen in public Right to cause sounds of the film to be heard in public Copyright © 2024, Singapore Institute of Legal Education Right of Adaptation Sections 17 to 19 See table in next slide Section 112(1)(f) Exclusive rights in relation to an adaption of the work Copyright © 2024, Singapore Institute of Legal Education Right of Adaptation Sections 17, 18 Copyright © 2024, Singapore Institute of Legal Education Duration of Copyright Published Authorial Works Life of author + 70 years: s 114 Time starts running after expiration of calendar year in which author died Sound Recordings and Films Sound recording: s 122 Film: s 125 Time starts running after expiration of calendar year of relevant event (e.g. publication) Copyright © 2024, Singapore Institute of Legal Education Intellectual Property Copyright Infringement and Exceptions Principles of Infringement Global Yellow Pages v Promedia Directories Pte Ltd SGCA 28 paraphrased Liability for infringement turns on 3 main questions: 1. Does copyright subsist? 2. Has copyright prima facie been infringed? 3. Do any defences or exceptions apply? Copyright © 2024, Singapore Institute of Legal Education Principles of Infringement Global Yellow Pages v Promedia Directories Pte Ltd SGCA 28 paraphrased Copyright protects expression, not ideas, facts, data An original selection and arrangement of facts can be protected by copyright. However, the protection would be “thin”. (The “thinner” the protection, the more substantial the copying must be before a finding of infringement can be made: ) Copyright © 2024, Singapore Institute of Legal Education Principles of Infringement Global Yellow Pages v Promedia Directories Pte Ltd SGCA 28 paraphrased There is a connection between the originality, skill and judgment that go into a work, and the substantiality of copying needed to establish infringement Infringement is where the whole work or a substantial part of the work that attracts protection in the first place is copied Copyright © 2024, Singapore Institute of Legal Education Thinking of Infringement Breaking it down by category of works Helps in practice to break down the categories of works Identify the different subject-matter (this helps you further identify the exclusive right later) 1. Infringement of authorial works  Is it a literary work? Artistic work etc.? 2. Infringement of non-authorial works  Is it a sound recording? Film etc.? Copyright © 2024, Singapore Institute of Legal Education Thinking of Infringement Breaking it down further by the type of infringement Identify the type of infringement 1. Infringement of acts comprised in copyright: s 146 2. Infringement by commercial dealings: ss 147, 148 Copyright © 2024, Singapore Institute of Legal Education Thinking of Infringement Infringement of acts comprised in copyright Section 146 Recap “Exclusive Rights” and substantiality rule Causative link, access to the work  Two people take a photograph of the same scene. The photos appear almost identical. No infringement.  “Causal connection” can be prima facie inferred from defendant’s access to claimant’s work and close similarity between the two works Copyright © 2024, Singapore Institute of Legal Education Thinking of Infringement Authorising infringement of acts comprised in copyright Section 146(1)(a) “authorises the doing … of” RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and Ors 1 SLR 830 (CA) at Four “authorization liability factors” To determine whether authorisation to do an act comprised in the copyright had been granted illegitimately Copyright © 2024, Singapore Institute of Legal Education Thinking of Infringement Commercial dealing Section 73 definition of commercial dealing  Sell, let for hire, offer / expose for sale or hire, distribute, exhibit by way of trade Sections 147, 148 Note knowledge element that the defendant “knows or ought reasonably to know” that the article was made without the consent of the copyright owner (imported article) or that the making of the article infringed copyright (article made in Singapore) Copyright © 2024, Singapore Institute of Legal Education Exceptions Permitted Use Where an act is a permitted use, the act is not an infringement: s 183(1) Permitted uses are independent of each other: s 184 Application of permitted uses may be excluded or restricted by contract: s 186  Specific categories that cannot be excluded by contract: s 187  Must fulfil conditions: s 186(2), (3) Copyright © 2024, Singapore Institute of Legal Education Exceptions Fair Use Fair use is permitted use: s 190(1) Four non-exhaustive factors: s 191 a) the purpose and character of the use, including whether the use is of a commercial nature or is for non-profit educational purposes b) the nature of the work or performance c) the amount and substantiality of the portion used in relation to the whole work or performance d) the effect of the use upon the potential market for, or value of, the work or performance Copyright © 2024, Singapore Institute of Legal Education Exceptions Deemed Fair Use (non-examinable) Sections 193 to 194 Where fair use is deemed in these scenarios, s 191 does not apply Copyright © 2024, Singapore Institute of Legal Education Exceptions Other Permitted Uses Many other permitted uses in Part 5 of Copyright Act (mostly non-examinable) Acts done for purposes of examination: s 202 Acts done for judicial proceedings: s 290 Acts done for seeking or giving legal advice: s 291 Computational data analysis: ss 243, 244 (non- examinable) Private and domestic use: s 299 (non-examinable) Copyright © 2024, Singapore Institute of Legal Education Limitation Period No action for infringement of copyright after 6 years from the time when the infringement took place: s 154 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.