Copyright Infringement in Singapore

1.04.2024
Jeremy Cheong
Author

Jeremy Cheong

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+65 8800 8074

Copyright is an essential aspect of intellectual property law that seeks to protect original artistic works. It generally prevents third parties from using or copying a piece of original work without the creator’s permission. The law encourages creation and innovation, whilst acknowledging the ownership people should have over their original ideas.

The creator of any artistic work does not need to register it for copyright protection formally; it automatically arises when the work comes into existence. To be eligible for copyright, the work must be original and tangible, such as a piece of writing or a film. An idea cannot be protected unless recorded or written down.

In a situation where a piece of copyrighted work is being used without the creator’s permission, this will potentially give rise to an infringement of their copyright. The creator will want to know what their options are in terms of legally enforcing the copyright, particularly if the infringement is going to cause them financial loss or damage to their reputation.

Qualifying for copyright protection

The Copyright Act 2021 defines the types of “work” eligible for protection. They are listed in Section 8 as follows:

  1. An authorial work;
  2. A published edition of an authorial work;
  3. A sound recording;
  4. A film;
  5. A broadcast; or
  6. A cable programme.

Authorial works are defined in the Act as any literary, dramatic, musical, or artistic work. Therefore, any of these works will be subject to copyright protection, provided they are original.

Duration of protection

The duration of protection will depend upon the type of work concerned. In summary:

  • Protection of any literary, dramatic, artistic, or musical works will usually continue throughout the author’s life and for 70 years after their death. This is provided that the relevant work is published within 50 years of its creation.
  • If the author is unknown, the work will benefit from 70 years of protection from the initial publication date.
  • Protection of sound recordings and films will usually continue for 70 years from the initial publication date.
  • The protection of broadcasts and cable programmes usually lasts 50 years from the date of creation or airing.
  • Protection with respect to any performance will usually last 70 years from the end of the year when the performance is given.
  • Protection of published editions of work will last 25 years from the initial publication date.

Infringement: When will it arise?

As the owner of copyrighted works, a person possesses an exclusive right to make copies of and publish the work. They also have the sole ability to communicate publicly in respect of their work.

Where a third party exercises any of the rights above without the owner’s permission, they may be liable for copyright infringement. Infringement will not arise if that person can successfully show that:

  1. They have a license to use the work or permission from the owner; or
  2. The copying is a permitted use of the work; or
  3. It does not involve a substantial use of the relevant work.

The permitted use of the work will allow it to be used in certain situations without constituting infringement. These situations are:

  1. Use of the work for educational purposes within educational institutions.
  2. Use of the work for public exhibition.
  3. Use of the work within judicial proceedings or in the context of seeking legal advice.

If none of the above apply, infringement will arise, and the owner will be eligible to bring a claim for copyright infringement before the court.

Establishing copyright Infringement

There are three main elements to establishing a copyright infringement:

(1) Is the work protected by copyright and owned by the person bringing the claim?

This aspect is not usually difficult to establish. There will usually be a presumption that a work is protected by copyright, and the person claiming is the owner of the relevant work.

If the person accused of copyright infringement disputes the owner’s rights over the work, the owner will need to produce an affidavit setting out their position and explain to the court how and why the works are owned by them and protected by copyright. The affidavit should also state the protected works are still within the relevant duration.

(2) Has the person responding to the claim copied that work?

The owner must demonstrate a connection between the original and copied work. This could be tricky to establish in principle, as it is possible for similar works to be created without any prior knowledge of the original creation.

However, the courts acknowledge this difficulty, and the law seeks to address this by allowing for a starting presumption in favour of the owner. A work is presumed to have been copied if the alleged infringer has come across the relevant work, and if there are substantial similarities between the two works. The burden is then on the alleged infringer to prove that they did not copy the work.

(3) Has the person responding to the claim copied the entire work or a substantial part of it?

This final element is easy to establish where the infringer has simply taken the entire piece of work and reproduced it. The situation can be more challenging where only part of the work has been copied, as the owner needs to show that it was a substantial part of the work to establish infringement.

The “substantial part” element will be decided on a case-by-case basis. Generally, the court will look at the actual content that has been copied as opposed to the quantity of copied work. What may usually be considered a minor detail in the original work may be the one aspect that makes the work widely identifiable. The copying of that minor detail may, therefore, still be considered the copying of a “substantial part” for the purposes of infringement.

Fair Use Defence

A potential infringer will not be considered to have copied a work if its use is deemed to be fair. There is no precise definition in terms of what will qualify as fair use, but the court will consider a range of factors when deciding whether this defence should apply. Such factors are set out at Section 191 of the Copyright Act and can be summarised as follows:

  1. The purpose and character of the use, for example, whether it is for commercial or non-profit educational purposes. The use is more likely to be considered fair in respect of the latter.
  2. The nature of the work or performance. For example, if it is a work of fiction as opposed to fact, then its copying is less likely to be considered fair.
  3. The amount and substantiality of the portion used in relation to the whole work or performance. Similar to the “substantial part” element above, the use of the work may be considered fair if only a minor part of it has been used.
  4. The effect of the use upon the potential market for, or value of, the work or performance. It is less likely that the use will be considered fair if it is found to significantly impact the saleability of the original work.

The defence will also apply where the work is for a specific purpose, including criticism or review or the reporting of current affairs. This is not an automatic defence, as the court must still be satisfied that using the work in these circumstances is fair. The alleged infringer cannot rely on this defence if they have not sufficiently acknowledged the original work in their criticism, review, or report. They must ensure to correctly identify the original work and the creator.

Enforcing copyright

The owner of the work should establish whether their copyright is likely to have been infringed. It is also helpful at an early stage to understand the desired outcome. The owner may be looking for a payout, an injunction to stop using the work, or both.

The owner should try to resolve matters outside of court, if possible, due to the time and costs involved in court proceedings. They should, therefore, consider negotiation or mediation with the alleged infringer as a first step. If this is unsuccessful, they may wish to issue a claim with the Copyright Tribunal, which can award an injunction, damages, and an account of profits made by the alleged infringer.

Is a lawyer needed?

It is advisable to seek the assistance of a lawyer when faced with a potential copyright infringement issue. They can advise on the prospects of success of any potential claim through the court and assist you with any attempts to settle.

Jeremy Cheong
Author

Jeremy Cheong

WhatsApp

+65 8800 8074

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