Copyright fair use: Are we 'future-ready'?

The digital age is characterised by a proliferation of myriad platforms on the Internet that inform, educate, entertain, ridicule, promulgate ideologies, sell products and connect communities of individuals. Love it or loathe it, social networking sites are here to stay. Sites like Facebook, YouTube and Instagram invite each of us to share writings, photographs and videos.

But do these postings qualify as fair use of the original copyrighted works? It has been said that such activities expose users to higher risks of copyright infringement and the technological features nudge users to behave in certain ways that violate the exclusive rights of copyright holders.

Copyright law is ultimately designed to benefit society by stimulating creativity, by providing economic incentives to create new works. It achieves this goal by securing for creators limited-term monopoly rights to exploit their work.

However, without appropriate limitations and exceptions, these rights could place considerable restraints on creativity, resulting in an overall decrease in social welfare.

Are Singapore's copyright laws "future-ready"? Are we striking the right balance between owners' rights and users' access?

On Aug 23, the Ministry of Law and the Intellectual Property Office of Singapore (Ipos) released a public consultation paper on proposed changes to our copyright regime, covering a wide range of topics from fair use to exceptions for non-profit education.

Under Canada's Copyright Modernisation Act 2012, an individual may use an existing work in the creation of a new work and authorise an Internet intermediary to disseminate it, if use of the new work is solely for non-commercial purposes. PHOTO: BLOOMBERG

The proposal to reform fair use aptly captures the Government's concern to safeguard the interests of the public at large within a framework of strong, effective protection for copyrighted works.

The open-ended American "fair use" approach was introduced in Singapore in 2004 to complement the categorical Australian and English models. The then Minister for Law, Professor S. Jayakumar, explained that this was intended to strike a good balance between the interests of copyright owners and users by preserving the unimpeded exchange of information and ideas to create an environment which is conducive to the development of creative works.

Courts in Singapore are required to weigh five factors to determine whether an infringing use was "fair dealing". This provision has never been tested before our courts.

The five factors are:

  • The purpose and character of the use, including whether the use is commercial in nature or for non-profit educational purposes;
  • The nature of the creative work;
  • The amount of the creative work that has been copied, or whether the part that is copied is substantial to the whole of the creative work;
  • The effect of the use on the potential market for, or value of, the creative work; and
  • The possibility of obtaining the creative work within a reasonable time at an ordinary commercial price.

The Consultation Paper recommends the removal of the fifth factor as "it was adopted in 2004, a time when copyright works were still largely distributed in a physical medium" and that it seems "to have less relevance in the light of certain new platforms and uses for content creation and distribution, such as the use of music in the background of home videos put up online".

This is an enlightened move that is in step with technological development, social media norms and global legal trends.

The fifth factor suggests copying is fair dealing if, after reasonable investigation, the work cannot be obtained within a reasonable time at an ordinary commercial price.Therefore, before I can upload a home video on YouTube of myself lip-syncing and dancing to Let It Go, I need to attempt to pay a licence fee for the use of the song.

The Consultation Paper asks: "Are there any other changes to the 'fair use' defence that can better fulfil the purposes of a balanced copyright regime?"

Many copyrighted works possess significant established meanings and connotations to the public, who utilise them in arguably "transformative" ways on the Internet for social identity formation and democratic discourse, including memes, fanfic and fanvids. It is unclear, even after removing the fifth factor, whether such uses are unequivocally fair use.

I have a modest suggestion - the Government could consider the adoption of a Non-Commercial User-Generated Content (UGC) exception akin to what Canada has recently enacted. Under Canada's Copyright Modernisation Act 2012, an individual may use an existing work in the creation of a new work and authorise an Internet intermediary to disseminate it, if use of the new work is solely for non-commercial purposes. This could certainly cover parody, satire, caricature and pastiche.

As a private individual, I can then freely share photographs, short texts and videos on social media platforms without having to seek the permission of the copyright owners, so long as there is no commercial profit and substantial adverse effect on the potential exploitation of the original work.

Last year, 74 per cent of Singaporeans used social media regularly. In 2018, the number of Facebook users in Singapore is expected to reach 3.18 million.

A clear UGC exception would certainly bring great comfort to many who are a part of the remix/reload/recode culture of online communities today. Copyright law should embrace this new future of transformative play within an interactive social and cultural space.

•The writer is an associate professor in the Faculty of Law at the National University of Singapore, where he teaches entertainment law and freedom of speech.

A version of this article appeared in the print edition of The Straits Times on September 14, 2016, with the headline 'Copyright fair use: Are we 'future-ready'?'. Print Edition | Subscribe