A LOOK BACK AT PUBLIC POLICY, THE LEGISLATURE, THE COURTS AND THE DEVELOPMENT OF COPYRIGHT LAW IN SINGAPORE

• Date: 01 December 2012
• Author: George WEI Advocate and Solicitor, Supreme Court of Singapore; Professor (Practice) of Law, Singapore Management University.
• Published date: 01 December 2012
• Citation: (2012) 24 SAcLJ 867

Twenty-Five Years On

The purpose of this article is to review the development of copyright law in Singapore over the past 25 years and to examine how public policy considerations have shaped legislative and judicial development of copyright law principles. The article begins with a review of legislative activity and includes a brief survey of the public consultation exercises that have taken place on reform proposals. Included is a discussion of statutory amendments in respect of exhaustion of rights and fair dealing. This is followed by a discussion of some copyright case law, with a view to identifying judicial copyright policy approaches and concerns that have been expressed in the development of copyright principles in Singapore.

I. Introduction

1 The year 2012 marks the 25th anniversary of the coming into force of the Copyright Act 1987.1 Coincidentally, it also marks the 100th anniversary of entry into force of the Imperial Copyright Act 1911 of the Westminster Parliament.2 The year 1987 witnessed effectively

what became the “big bang” of modern copyright law in Singapore. The Copyright Act 1987 in turn quickly led to the modernisation of the entire intellectual property (“IP”) law system in Singapore.3 The trigger for the “big bang” was the economic transition that Singapore was undergoing in the 1980s and the need to change societal attitudes towards IP. The Ministry of Trade and Industry explained that, in 1987, Singapore was facing the challenges of a maturing economy, slower economic growth, increasing resource constraints, rising costs as well as increasing competition from developed and developing countries. Singapore's use of technology at that time was relatively low, and there was a perceived need for the Government to catalyse the use and development of technology as part of Singapore's strategy to develop her industry (especially in niche cluster areas such as electronics) and to diversify her economy.4

2 In 1987, it was estimated that there had been 3,361 research scientists in Singapore; ten years later, that figure rose to 11,302. Also in 1987, Singapore's gross domestic product (“GDP”) had been $61.316bn; by the end of the first decade of the new millennium, Singapore's GDP grew to about $265bn.5 Singapore's new economic strategy, which dates back to the 1980s and tweaked from time to time, has clearly succeeded. That the modernisation of Singapore's IP law has played an important role in the transformation of Singapore's economy and industry cannot be doubted. Indeed, the development of Singapore's IP law coincides with a period of rapid development of the Singapore legal system, leading to new-found confidence and assertiveness in the judicial development of the common law in Singapore. Singapore has removed

the system of acquisition of patent and design rights by registration in the UK and has taken full control of the development of the country's legal system by setting up her own national apex Court of Appeal and by legislative clarification of the effect English enactments have in Singapore under the Application of English Law Act.6

3 The purpose of this article is to review the development of copyright law in Singapore over the past 25 years and, in particular, to consider the extent to which public policy considerations have helped to shape legislative and judicial development of copyright law principles. The article begins with a review of legislative or statutory activity in the area of copyright since 1987 and a brief survey of the public consultation exercises that have taken place on reform proposals and lawmaking. Included will be a more detailed discussion of two areas that have generated some amount of public controversy and which have been subject to statutory amendments: the problem of exhaustion of rights and the scope of the fair dealing defences. The objective will be to draw out the general legislative and judicial approach towards copyright in Singapore, rather than to set out a detailed discussion of these two areas. This is followed by a discussion of copyright case law over the past 25 years, with a view to identifying some judicial copyright policy approaches and concerns that have been expressed in the development of copyright principles in Singapore. This is followed by a conclusion that will attempt to draw the strands together in the context of the development of Singapore law.

II. Legislative developments, 1987–2011 – Statute law, and intellectual property and copyright lawmaking

4 A glance at the Appendix will reveal the scale of legislative activity over the past 25 years in connection with IP. The Copyright Act 1987 alone has been the subject of some 15 amending Acts. Seven of these enactments have effected major changes to the law.7 Many of these were driven by the need for Singapore to implement her obligations under the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS Agreement”), the World Intellectual Property Organization Copyright Treaties and the US–Singapore Free Trade Agreement (“USSFTA”). That many of the amendments were driven by the need to comply with international obligations does not, however,

mean that Singapore is an unwilling convert to the cause of IP rights (“IPR”). In fact, the reverse is true. It might be said that an important factor behind the enactment of a new copyright law in 1987 and the application of that law to protect US works in Singapore on a national treatment basis was the need to protect Singapore's trading privileges (Generalised System of Preferences benefits) with the US.8 Even so, there can be no doubt that Singapore had already determined that it was in her national interest to embrace IP and to develop her economic and industrial base through increased levels of research and development. Securing or protecting her trading position with the US was just one factor; securing and developing her relationship with the international trading and financial community and the need to encourage broad-based creative and entrepreneurial activity within Singapore had become, and remains, a national imperative.9 As is well known, Singapore is a founding signatory of the Anti-Counterfeiting Trade Agreement10 (“ACTA”), and remains committed to the need to provide effective protection for IP. The Government statement issued on the date of the ACTA signing proclaimed:11ACTA is a significant achievement in the global fight against infringement of intellectual property rights (IPR) and in particular, the proliferation of counterfeiting and piracy. The key elements of ACTA go beyond the standards set by the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights and include more robust border measures for IPR, stronger civil and criminal liability regimes, and additional provisions for copyright protection in the digital environment. Singapore's IPR regime upholds the high standards established by ACTA … With the importance of knowledge-based industries to the economy, Singapore places strong emphasis on supporting measures that encourage creativity and innovation. Singapore supports the establishment of mechanisms such as ACTA, as they promote greater international cooperation in the effective protection of IPR and adoption of higher standards in such protection.

5 The need for Singapore to provide strong and effective protection for IP does not mean that there are no counterbalancing concerns. The need to secure the interests of copyright owners is a “first among equals”.12 The history of the statutory copyright amendments over the past 25 years well demonstrates the concern that strong protection should be balanced in a way to secure other equally important national public interests such as access to information, education, public health and the need for competition. In the Appendix, reference is made to various Parliamentary statements in 2012 on copyright and IP protection. Even as the Minister for Law underscored in 2012 the importance of robust IP laws that are able to deal effectively with the challenges of the digital environment, the Minister also pointed to the need to preserve and protect legitimate uses of the Internet by the public at large. Where the balance lies is the tricky question, especially as technology expands the boundaries of the digital world. It comes as no surprise to find that the Government has on several occasions restated the necessity to review copyright law on a regular basis, given the rapid

pace at which technology (and especially communication technologies) has been developing.

6 The rapid-fire amendments to Singapore's copyright legislation during the past 25 years were driven by Singapore's international commitments. These commitments are signed for largely because of the need to adapt the copyright system to the world of digital information and high-speed broadband communication technologies. It stands to reason that a copyright law developed to meet the challenges of analogue terrestrial television broadcasting, film-based photography, mimeograph technology, printing technology and paper books would struggle in the world of digital satellite broadcasting, the Internet, digitisation and virtual world classrooms.13 It should come as no surprise that the courts have, from time to time, returned to the policy rationale for copyright, for guidance in interpreting and applying copyright provisions and principles in the light of technological changes. The need to couple strong protection with appropriate checks and balances is an important theme underlining the discussion that follows.

7 Post-1987 statutory developments in copyright law concerned with safeguarding the interests of users and the public at large include the amendments made to the provisions dealing with parallel imports (exhaustion of rights) and the fair dealing defence.

A. Parallel imports and exhaustion of rights

8 The first area of copyright law...