The big copyright update

From VPN to big data, a senior lawyer gives his take on some of the Government's proposals

The current review of Singapore's copyright law is timely. New digital technologies have rendered the law increasingly incongruous with societal norms and needs. Similar reviews have been conducted in Australia, Canada, Ireland, the European Union and the UK. They all concluded that changes to the law are vital in this digital age.

In Singapore, the Ministry of Law has proposed revisions to the Copyright Act, last updated in 2004, including reviewing the role of virtual private network (VPN) technology in circumventing technological protection measures. In its consultation paper launched last week, the ministry's proposals included allowing data mining for the purposes of data analysis, and allowing public schools to more fully use student portals to reproduce and share content for teaching purposes. The public consultation ends on Oct 24.

The overseas reviews sought to recalibrate the balance between fostering creativity and innovation and allowing greater public access to copyright works - an economic, social and legal dilemma made more complex with the advent of the Internet and social media.

ALLOWING USE WHEN AUTHOR IS UNKNOWN

International treaties such as Trips (Agreement on Trade-Related Aspects of Intellectual Property Rights) permit exceptions to copyright protection to facilitate greater public access. This is provided they are confined to "special cases" and "do not conflict with a normal exploitation of the (copyright) work". The list of "special cases" has traditionally included educational institutions, libraries and archives.

The Singapore Government has indicated that it is considering including "orphan works" in that list. These are copyright works whose authors or owners are unknown or cannot be located. Examples include old photographs, letters and films. They may be of cultural or historical value and can contribute to education and research.

Yet, access to as well as use of orphan works are constrained by the inability to seek permission from the authors or owners. Also, libraries, archivists and museums that wish to digitise or scan the works are often unwilling to do so for fear of copyright infringement. Indeed, Google was recently sued for digitising copyright works (including orphan works) to create an online, searchable library.

An online portal launched by the National Archives of Singapore allowing the public to pool their knowledge and increase the efforts to index more of the city-state's history. The Ministry of Law has proposed revisions to the Copyright Act, including
An online portal launched by the National Archives of Singapore allowing the public to pool their knowledge and increase the efforts to index more of the city-state's history. The Ministry of Law has proposed revisions to the Copyright Act, including reviewing the role of VPN technology in circumventing technological protection measures. ST FILE PHOTO

A number of the overseas reviews proposed some form of government or compulsory licensing scheme to permit the use of orphan works. Such a scheme was introduced in the UK: A potential user can use an orphan work from a register after a "diligent search" for its author or owner and upon payment of a licence fee to the government. The government will hold the fee on behalf of the absent author or owner.

A variation is that, instead of paying the fee to the government, the user will pay the fee directly to the author or owner when they are eventually identified or located. Both schemes impose an unenviable burden on the government to determine a fair licence fee. The court or a copyright tribunal is better placed to make such a determination.

AN EXCEPTION FOR BIG DATA?

Text and data mining (TDM) has become an important commercial tool. It enables businesses to not only extract raw data from copyright works, but also to copy, process and analyse the data to predict or detect customer trends and buying patterns.

The Singapore Government recognises the value of this tool, stating in the consultation paper that it "is integral to Singapore's Smart Nation initiative".

It proposes to create a new exception which would allow the copying of copyright works for the purposes of data analysis. The exception would not differentiate between using the TDM for commercial or non-commercial purposes, which means that businesses which sell the data analysis do not need to pay any licence fee for the use. The proposal is unlikely to be well received by copyright and database owners.

CONTRACTUAL RESTRICTIONS

Also under review is the extent to which copyright owners can restrict users from relying on copyright exceptions - such as "fair dealing" for the purposes of research - in their contracts.

An example is online transactions - most compel users to agree to "contract out" of the exceptions in their list of terms and conditions, in order to access their products or social media services, and do not allow negotiation.

The copyright owners justify this on the well-established principle of freedom of contract. They also suggest that prohibiting them from restricting users this way is contrary to the Trips agreement, being in conflict with the normal exploitation of their copyright works and prejudicial to their legitimate interests.

However, the case for stopping the copyright owners from using such contractual restrictions is persuasive. It tends to interfere with free competition and undermines social and legal policies underlying the exceptions. Stopping this restriction would level the playing field.

GEO-BLOCKING AND VPN

Copyright owners also rely on technological protection measures (such as access codes and encryption) to prevent unauthorised access to and use of their works. These act like digital locks and have been deployed, among others, to prevent consumers from making online purchases of cheaper goods (for example, computer games) from other geographical markets ("geo-blocking"). They can be disabled or circumvented through technologies such as VPN.

The notion that geo-blocking may legally be allowed to be circumvented by VPN has generated debate in The Straits Times("VPN tech being reviewed under Copyright Act", Aug 24; "Reviewing VPN concerns", Aug 25). The debate had earlier raged in the EU and Australia.

At the heart of the debate is the issue of the consumer's right to use genuine copyright works that have been lawfully obtained. In the EU, the European Commission in May 2015 adopted the Digital Single Market Strategy which aimed to end "unjustified" geo-blocking between its member countries.

In a case concerning Sony's Playstation CD-ROM, the Australian High Court remarked that its geo-blocking practice "reduce(s) global market competition" and "inhibit(s) rights ordinarily acquired by Australian owners of chattels to use and adapt the same, once acquired, to their advantage and for their use as they see fit".

The debate in Singapore should similarly focus on this issue, and not on the legality of VPN technology.

•The writer is a senior counsel with an active practice in intellectual property.

A version of this article appeared in the print edition of The Straits Times on September 06, 2016, with the headline 'The big copyright update'. Print Edition | Subscribe