THE TRANSFORMATIVE USE DOCTRINE AND FAIR DEALING IN SINGAPORE

• Citation: (2012) 24 SAcLJ 832
• Published date: 01 December 2012
• Author: David TAN PhD (Melbourne), LLM (Harvard), LLB (Hons) BCom (Melbourne); Associate Professor, Faculty of Law, National University of Singapore.
• Date: 01 December 2012

Understanding the “Purpose and Character” of Appropriation Art

Generally a transformative work is one that imbues the original “with a further purpose or different character, altering the first with new expression, meaning, or message”. Given that the wording of the first statutory factor of fair dealing in section 35(2)(a) of the Singapore Copyright Act is identical to section 107 of the US Copyright Act, and that three other statutory factors are also similar, this article argues that the transformative use doctrine in US law is highly persuasive in the Singapore context. It further postulates that transformativeness not only occupies the core of the fair use/fair dealing doctrine but also reduces the importance of all other factors, such that the more transformative the new work, the less significant the other factors will be. It demonstrates through an examination of judicial decisions involving transformative use in contemporary art that a contextual transformation may be sufficient to qualify as a “change in purpose or character” that weighs in favour of fair use. Therefore when a transformation occurs through “repurposing” or “recharacterising”, as reasonably perceived by the audience to which the secondary work is directed, the first statutory factor of fair use/fair dealing, whether in the US or Singapore, should weigh in favour of the defendant secondary user.

I. Introduction

1 The fair use defence has been described as the “most nebulous and unpredictable aspects” in copyright law.1 In the US, the affirmative

defence to copyright infringement is found in section 107 of the Copyright Act,2 listing four non-exhaustive factors that courts shall consider whether such a use is fair and thus non-infringing. Singapore has adopted almost identical wording in articulating four statutory factors in its revamped fair dealing defence,3 with the addition of a fifth factor.4 Fair dealing in the copyright law jurisprudence of many Commonwealth jurisdictions is an exclusion to copyright infringement so that others may be allowed to use copyrighted works without first seeking permission, but only in certain purpose-specific manner – like research, study, criticism and review – as codified in statute. The striking similarity between the US and Singapore provisions is that the fair use/fair dealing defence may be pleaded for all uses where infringement is alleged, and is not confined to enumerated categories; this important development signals that Singapore has developed a fair dealing standard that departs from the current practice of other Commonwealth common law jurisdictions like the UK and Australia.5

2 The ultimate goal of copyright is arguably to benefit society by stimulating creativity through providing economic incentives to create new works.6 Its objectives are, first, to promote new and original

expression in the arts (which includes literature, music and painting), and second, to permit other public interest activities like education, research, news reporting, and comment and criticism of existing works. However, without appropriate limitations, the grant of exclusive monopoly rights over exploitation of these works has the potential to impede, not advance, creativity. Hence the fair use/fair dealing doctrine is the primary mechanism that balances the “inherent tension” between copyright protection and creative expression.7 It creates “breathing space for cultural engagement in the form of reinterpretation and remixing of copyrighted content … [and] makes it possible for large commercial entities to build tools such as search engines that make the Internet work and to create platforms such as YouTube and Facebook”.8 While Singapore courts have yet to address the interpretation of the factors of fair dealing articulated in section 35(2) of the revised Copyright Act,9 courts and scholars in the US have grappled with the fair use doctrine for over three decades.10 In Singapore, academic commentators, Warren Chik and Saw Cheng Lim, have observed:11

An important distinction with the narrower version of fair dealing is that fair use and its functional equivalent is not purpose specific and hence is conceptually wider and allows for a more flexible and expansionist interpretation. In that sense, it is also a more forward-looking and adaptive instrument.

3 In US fair use jurisprudence, the first statutory factor of fair use – the “purpose and character of the use”– is examined in the context of the transformative nature of the infringing work. Generally a transformative work is one that imbues the original “with a further purpose or different character, altering the first with new expression, meaning, or message”.12 According to the Supreme Court in Campbell v Acuff-Rose Music Inc (“Campbell”), transformativeness not only

occupies the core of the fair use doctrine but also reduces the importance of all other factors such that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use”.13

4 Given that the wording of the first statutory factor of fair dealing in section 35(2)(a) of the Singapore Copyright Act14 is identical to section 107 of the US Copyright Act,15 and that three other statutory factors are also similar, this article argues that, notwithstanding the operation of the First Amendment,16 the transformative use doctrine in US law is highly persuasive in the Singapore context. Therefore this article will focus only on an evaluation of the first fair dealing factor and, more specifically, the potential application of the transformative use doctrine. It intends neither to examine the fair dealing defence in its entirety nor to explore the interaction of various factors of fair dealing. It only seeks to introduce the transformative use doctrine to the courts and practitioners in Singapore in a manner that might be useful for the pleading of the fair dealing defence in the future. Part II provides a brief overview of the legislative history of section 35(2) of the Singapore Copyright Act17 and highlights its similarities to the US fair use statutory provisions. Part III focuses on an elucidation of the transformative use doctrine as it is presently understood in the US and attempts to categorise the application of the transformative use doctrine in fair use cases into clusters that more accurately reflect a change in “purpose” and/or “character” of the primary work. Part IV, drawing on experiences in contemporary art, posits that when such a transformation occurs through “repurposing” or “recharacterising” as reasonably perceived by the audience to which the secondary work is directed, the first statutory factor of fair use/fair dealing, whether in the US or Singapore, should weigh in favour of the defendant secondary user. Part V illustrates how this transformative use doctrine may be applied to cases involving appropriation art and suggests how the first factor of fair dealing may be interpreted in Singapore in this context. Part VI concludes that in the interpretation of section 35(2)(a) of the Copyright Act,18 courts in Singapore should consider focusing on whether transformation has occurred through a change in the “purpose and character of the dealing”19 and be guided by the ethos of the transformative use doctrine.

II. Fair dealing in Singapore

5 In Singapore, fair dealing defence as encapsulated in section 35(2) of the Copyright Act20 states:

For the purposes of this Act, the matters to which regard shall be had, in determining whether a dealing with a literary, dramatic, musical or artistic work or with an adaptation of a literary, dramatic or musical work, being a dealing by way of copying the whole or a part of the work or adaptation, constitutes a fair dealing with the work or adaptation for any purpose other than a purpose referred to in section 36 or 37 shall include —

(a) the purpose and character of the dealing, including whether such dealing is of a commercial nature or is for non-profit educational purposes;

(b) the nature of the work or adaptation;

(c) the amount and substantiality of the part copied taken in relation to the whole work or adaptation;

(d) the effect of the dealing upon the potential market for, or value of, the work or adaptation; and

(e) the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price.

This fair dealing defence, which requires an examination of a non-exhaustive but compulsory list of five factors, is applicable to all uses except for criticism or review (section 36) and reporting of current events (section 37), came into effect on 1 January 2005. It replaces the previous section 35(2) of the Copyright Act,21 which lists four non-exhaustive factors to be examined in respect of fair dealing for the specific purpose of research or private study. By delinking the new fair dealing defence from these permitted purposes, it was observed that “Singapore shifted away from the British model of fair dealing and

moved closer towards the American ‘fair use’ model”.22 The US fair use defence in section 107 of the Copyright Act23 also contains a non-exhaustive but compulsory list of factors to be examined for all uses. Moreover, section 35(2)(a) of the Singapore Copyright Act24 adopts the exact wording as the first statutory fair use factor of section 107 of the US Copyright Act,25 substituting the word “use” with “dealing”.

6 During the parliamentary readings of the Intellectual Property (Miscellaneous Amendments) Bill 2004,26 the then Minister for Law, S Jayakumar, explained that the purposes of proposed amendments to the Copyright Act – which include the introduction of a general fair dealing provision – are to update Singapore's intellectual property rights infrastructure and to implement Singapore's commitments under the US–Singapore Free Trade Agreement (“USSFTA”).27 The Minister also...