MULTIMEDIA AND COPYRIGHT

• Date: 01 December 1996
• Citation: (1996) 8 SAcLJ 80
• Published date: 01 December 1996
• Author: NG-LOY WEE LOON

I. INTRODUCTION

A study of the history of copyright will reveal that copyright is the legal framework most often used to meet the challenges posed by technology. Hence, the types of copyright subject-matter have expanded from the printed word — which was what early copyright was primarily concerned with1 — to include new works thrown up by technology such as photographs, sound recordings, cinematographic films, broadcasts, cable programmes and, most recently, computer software. Similarly, with the development of new means of exploiting works, such as broadcasting by wireless means (and later via satellites), copyright owners became vested with corresponding new rights.2

With the advent of digital or multimedia technology, it is not surprising that the role of copyright has once again been called into question. For the multimedia industry, the concerns are understandably these: can digital or multimedia technology be accommodated within the present framework of our copyright laws, or does digital or multimedia technology represent such a technological leap that the present copyright regime cannot adequately protect the new products and the new means of exploitation made possible by digital data compression? If the latter, what new category of subject-matter or new right should be created (and related to this, whether copyright is the appropriate legal framework for the protection of multimedia products)? Is there any solution to the multimedia industry’s nightmare when it comes to obtaining licences to use pre-existing works? The scope of this paper is therefore divided into 3 parts:

1. 1. Part II will examine the rights of the multimedia industry to use pre-existing works in the development of their multimedia product.

2. 2. Part III will examine the rights of the multimedia producers in their multimedia product under Singapore copyright laws.

1. 3. Part IV will examine a possible solution to the problems involved in negotiating with individual copyright owners: licensing through collecting societies or clearing houses.

In order to have a meaningful discussion of the issues raised, it is necessary that there be a working definition of the term “multimedia”. This term (and its derivatives) is not defined in the Singapore Copyright Act 1987,3 nor in any other copyright legislations. For the purposes of this discussion, the writer will take the term “multimedia” to mean a combination of traditional media, such as text, photos, graphics, full motion video and sound, in digital form.4 Multimedia works are usually distributed on high capacity storage devices such as CD-ROM or via high bandwidth networks so often dubbed the “Information Superhighway”, and typical use of the works includes interaction made possible with a computer program.

II. USE OF PRE-EXISTING WORKS IN MULTIMEDIA PRODUCTS

It is probably not an exaggeration to say that the success of the multimedia industry depends to a significant extent on the industry’s ability to make use of pre-existing works in the production of multimedia titles. It was for this reason that John Perry Barlow, author and co-Founder of the Electronic Frontier Foundation, blamed the inability of the present day legal framework to cope with digital technology:

“The principal reason there aren’t a lot of good multimedia titles is that it’s almost impossible to get rich imagery, and to track it legally, and to figure out who owns it and what your responsibilities are to that person if you are going to make commercial use of those images. It’s a vast grey area…The system we have now is irretrievably broken for dealing with the world we are about to enter.”5

The legal framework restricting the use of pre-existing works is invariably the copyright regime. The following summary describes the wide scope of

protection accorded by the Singapore Copyright Act 1987 to pre-existing works:

1. 1. Subject-matter protected: The range of subject-matter protected by copyright comprise (i) original literary, dramatic, musical and artistic works (“original works”); (ii) sound recordings; (iii) cinematographic films; (iv) broadcasts; (v) cable programmes; and (vi) published editions of works.6 To qualify for protection, these categories must satisfy some sort of “connecting factor” to Singapore. For example, only original works which were created by a citizen or resident of Singapore, or first published in Singapore, enjoy copyright protection under the Copyright Act 1987.7 For the moment, three countries — namely, the United States, the United Kingdom and Australia — have entered into bilateral agreements with Singapore whereby original works, sound recordings, films and first editions of works originating from these three countries would enjoy copyright protection in Singapore.8 If Singapore should join the Berne Convention for the Protection of Literary and Artistic Works (Text of the 1971 Paris Act),9 it would mean that her copyright protection would extend to works originating from many more countries.10

1. 2. Duration of protection: The term of copyright protection depends on the type of subject-matter concerned. Original works are protected during the lifetime of the author plus 50 years thereafter.11 For the other subject-matters, copyright protection lasts for 50 years, generally from first publication.12

2. 3. Ownership of rights: For original works, the author is the first owner of the copyright subsisting in the works.13 This general principle is subject to four exceptions. Firstly, if the author created the work in the course of his employment, the employer is entitled to the copyright in the work.14 Secondly, if the author is an employed journalist, the employer is entitled to part of the copyright subsisting in any work (other than a musical work) made by the journalist for the purposes of publication in a newspaper, magazine etc.15 Thirdly, if the author is commissioned by another person to take a photograph, to paint or draw a portrait or to make an engraving, the person who commissioned the making of the work is entitled to the copyright subsisting in the photograph, painting, portrait or engraving.16 Fourthly, if the author has assigned in writing the “future copyright” in a work which has not been created, the copyright in the work, on its coming into existence, is vested in the assignee.17

1. For sound recordings and cinematographic films, the “maker”, who is most likely to be the producer, is the first copyright owner, unless the making of the sound recording or film was commissioned by another person.18

   Ownership of copyright in a work can also be ‘split’ in the sense that an assignment of the copyright may be limited to one or more, but not all, of the exclusive rights. For example, the author of a musical work may assign only his rights of public performance and broadcasting to a collecting society, while retaining his other exclusive rights.

2. 4. Exclusive rights19: Copyright in original works includes the right to prevent others from reproducing the work in material form, making an adaptation of the work, performing the work in public, broadcasting the work and including the work in a cable programme.20 Copyright for the other categories of subject-matter is more limited.21

   Doing, or authorising the doing, of any of these acts in relation to the copyright work would therefore require the consent of the copyright owner.22 In fact, a licence from the copyright owner may be necessary even if only a part of the copyright work is reproduced in material form, adapted etc; this is because the use of a “substantial part” of the copyright work without consent is copyright infringement.23 Whether the part used is substantial or not depends on whether that part is, qualitatively speaking, an important part of the work.24 Therefore, even if a very small part is used, infringement may occur.

1. 5. Remedies: The court can order, in an action for copyright infringement, an injunction and either damages or an account for profits.25 Even where the infringement occurred innocently, the copyright owner may still be granted an injunction and/or an account of profits.26

This brief survey of copyright law in Singapore explains why, whenever there is need to use any pre-existing work or parts thereof in a multimedia title, the multimedia industry has to do the necessary homework to check if the work enjoys copyright protection in Singapore. The answer is likely to be in the affirmative, given the comprehensive range of copyright subject-matter and the long duration of protection. Further, the list of works protected in Singapore would increase in and after the year 2000 (or earlier) when Singapore gives effect to the TRIPS Agreement or when she joins the Berne Convention,27 since she would have to grant copyright protection to more and more foreign works.

If copyright subsists in the work, a typical use of the work in a multimedia title would invariably fall within the scope of the restricted acts of copyright. For example:

1. — digitisation of the works (whether for storage on CD-ROM or in the process of uploading onto a network) would amount to reproduction in material form;28

2. — digital sampling29 might well be a reproduction in material form if the sampling is used verbatim, or an adaptation of the musical work30 if the sampling was altered with the use of a MIDI (“musical instrument digital interface”);

1. — displaying the multimedia title on stand-alone kiosks in public places is likely to constitute a public performance of the copyright works used in the multimedia title;31

2. — disseminating the multimedia title over a network (eg. in videoon-demand or pay-per-view services) might fall within the scope of the copyright owner’s right to broadcast the copyright works used in the multimedia title,32 or the right to include these works in a cable programme;33

3. — providing a print function in the multimedia title might...