THE UNBEARABLE LIGHTNESS OF FAIR DEALING

• Citation: (2016) 28 SAcLJ 124
• Published date: 01 December 2016
• Date: 01 December 2016
• Author: David TAN PhD (Melbourne Law School), LLM (Harvard), LLB (Hons), BCom (University of Melbourne); Associate Professor, Vice Dean (Academic Affairs), Faculty of Law, National University of Singapore. Benjamin FOO LLB (Hons) (National University of Singapore).

Towards an Autochthonous Approach in Singapore

There is scant academic literature and virtually no case law on fair dealing, a significantly underexplored and underdeveloped area of copyright law, in Singapore. The goal of this article is to propose a workable interpretation of s 35(2) of the Copyright Act (Cap 63, 2006 Rev Ed) that is consonant with global developments and Singapore's own policy imperatives. Due in part to the historical connection of Singapore's Copyright Act to its Commonwealth counterparts, and in part to the striking similarity in the text of s 35(2) to the US fair use legislative provision, the authors argue that fair dealing in Singapore should draw on appropriate elements from Australian, UK and US jurisprudence. Ultimately, since Singapore's fair dealing provision must be shaped by prevailing local circumstances and by its sociolegal context, the autochthonous approach gives effect to Singapore's legislative objectives of creating an environment conducive to the development of creative works, and also facilitating greater investment, research and development in copyright industries.

I. Introduction

1 Fair dealing is one of several defences available under the Singapore Copyright Act1 to copyright users. As with the other exceptions under the Copyright Act, fair dealing:2

… provide[s] a reasonable balance between … giving copyright owners a fair return for the investment expended … [and] the interests of copyright users to have access to and to make use of the works and information contained therein.

Although the fair dealing provision has been part of the Copyright Act since its original enactment in 1987, the interplay of the five fairness factors has never been tested before the Singapore courts.3 Leading local textbooks on intellectual property and copyright law have similarly accorded this subject cursory treatment.4 Given the dearth of local cases and academic commentary in this area, it is timely to explore the interpretation and relationship of Singapore's fairness factors since high-profile online copyright infringement suits appear likely to be litigated in Singapore in the future.5 It is not inconceivable that the Google Books litigation may land on Singapore's shores,6 and both judges and

practitioners alike will have to wrestle with the enigmatic fair dealing provision as articulated in s 35(2) of the Singapore Copyright Act.

2 This article is concerned with the interpretation of s 35(2) — in particular, the interpretation of the five factors and their relationship with each other.7 Part II8 outlines the legislative history and policy behind copyright law in Singapore by tracing the development of the fair dealing provision since the inception of Singapore's Copyright Act. Additionally, it illustrates that while the legal developments in the area of fair use/fair dealing in the US, UK and Australia may have some influence on Singapore's fair dealing jurisprudence,9 Singapore's copyright policy imperatives are not entirely aligned with any particular jurisdiction.

3 Part III10 presents the current state of fair dealing law in Singapore. Since s 35(2) is in pari materia with s 40(2) of the Australian Copyright Act 1968 (“the Australian CA”) in so far as the five factors are concerned,11 which in turn codified the fairness factors in English and Australian common law, both Australian and UK jurisprudence could be highly persuasive in interpreting Singapore's s 35(2). To this end, this article surveys a number of Australian and UK cases in order to understand how their judges have approached the application of the relevant fairness factors.

4 Part IV12 discusses the US approach to fair use, focusing particularly on the “transformative use” doctrine in an attempt to discover its relevance, if any, to s 35(2). It explores the various formulations of the doctrine that have emerged and highlights how this doctrine, through its interaction with the other factors, dominates US fair use jurisprudence.

5 Part V13 draws on the jurisdictions considered and proposes an autochthonous approach to interpreting s 35(2). This approach entails a more explicit balancing of the statutory fairness factors, without according a priori precedence to any single factor, and takes into account the peculiarities of Singapore's copyright policy and industries.

6 Finally, the proposed approach is applied to three factual scenarios to demonstrate how it might work in practice —Authors Guild, Inc v HathiTrust14(“HathiTrust”), Campbell v Acuff-Rose Music, Inc15 (“Campbell”) and Cariou v Prince16 (“Cariou”). These cases present different contemporary problems which arise in fair use litigation in the US. It is the authors' modest hope that this proposed approach could provide a springboard for more academic discourse and a valuable reference point for the legal community in Singapore when called upon to tackle the issue of fair dealing in future.

II. Legislative history and policy of Singapore copyright law

7 Copyright law is ultimately designed to “benefit society by stimulating creativity through providing economic incentives to create new works”.17 It achieves this goal by securing to creators exclusive rights through which the creator may exploit. However, without appropriate limits, these rights may potentially place “manacles upon science”.18 Fair dealing in Singapore thus:19

… illustrate[s] … legislature's concern to safeguard the interests of the public at large within a framework of strong effective protection for copyright subject matter.

8 Singapore's fair dealing provision has undergone several changes since its original enactment in 1987.20 Originally, s 35(2) was modelled largely on s 40 of the Australian CA,21 thereby inheriting the UK categorical model where fair dealing is permitted only for specific enumerated purposes, as opposed to the US open-ended model.22 While Singapore's fairness factors represent a codification of the factors considered in UK and Australian jurisprudence,23 a conscious decision was made to remove the third Australian factor to suit the circumstances then prevailing in Singapore.24 Specifically, legislators were concerned that the third factor would inhibit the access of financially strapped students to textbooks.25 Since Singapore's Copyright Act of 198726 was

based largely on the Australian and UK models, the national copyright policy was similarly aligned with those jurisdictions. Consequently, despite the underlying utilitarian objectives of copyright law, a strong emphasis was placed on the proprietary nature of the right,27 which was consistent with the Singapore parliament's intent of developing the printing and publishing industries.28

9 Section 35 has subsequently been amended twice — in 1998 and 2004. Broadly, both amendments widened the scope of fair dealing. In 1998, s 35(2) was amended to remove “private” such that fair dealing applied to both private and “non-private” study.29 The 2004 amendment was “of monumental significance” because for the first time, the open- ended US approach was introduced in Singapore to complement the categorical Australian and UK models.30 However, the simultaneous adoption of the third Australian fairness factor arguably suggests that Parliament had not intended to adopt wholesale the US approach in Singapore.31 It was emphasised by the then Law Minister that the amendment was “not connected with the [US-Singapore Free Trade Agreement]”.32 Rather, the Ministry of Law had undertaken a comprehensive review of foreign fair dealing jurisprudence before arriving at the current s 35(2),33 and a deliberate decision was made to

retain the categorical fair dealing approach together with the Australian fairness factors while adopting the more open-ended US model for purposes falling outside these categories.34 In doing so, Parliament intended s 35(2) to “strike a good balance between the interests of copyright owners and those of the copyright users”35 by “preserving] the unimpeded exchange of information and ideas to create an environment which is conducive to the development of creative works”.36

10 It appears that an amalgamation of US, UK and Australian fair use/fair dealing experiences has influenced the formulation of the statutory fair dealing provisions in Singapore. In terms of copyright policy, a recurring theme in the parliamentary debates is the need to “strike a fair balance between the rights of copyright owners and copyright users”.37 However, this begs the question of how the balance should be struck. Despite this question being at “the heart of copyright legislation”,38 there is a surprising lack of guidance on the interpretation and interplay between the s 35(2) factors to achieve that balance.39 Furthermore, apart from broad policy statements made in Parliament, there is no publicly available record on the review undertaken that led to the 2004 amendments which may illuminate this issue. The shift in copyright policy over the years has added difficulty to interpreting s 35(2), as the constant evolution of society and developments in technology raise different, but important, public interest considerations.40

This shift is evident not only in the broadening of the fair dealing defence but also in local cases where courts are cautious about interpreting the exclusive monopoly rights too broadly.41 Moreover, the rejection of the “sweat of the brow” doctrine and acceptance of the originality standard as a condition for copyright subsistence in compilations have further eroded the scope of exclusive rights granted to copyright owners.42

11 Indeed, as V K Rajah JA observed:43

In the normal course of events … Legislature balances the rights and interests of all affected stakeholders after considering the social costs and the economic implications. Where the statute is not clear, however, the courts have to perform this difficult task.

Section 35(2) is one such instance where the court...