Fair use changes to law could make it easier to defend memes

Rihanna's yellow gown at the 2015 Met Gala in New York lit a fire under the Internet's meme machine. The "omelette dress", as it was quickly dubbed, spawned images including one of the pop star in a frying pan and another edited to refashion the gown's 3m-long train into a giant pizza.

But, would using the red carpet images of Rihanna - which are copyrighted by their respective photographers and photo agencies - in this way have been legal here under "fair dealing" exceptions?

Legal experts have been split on this, but proposed changes to laws here could make it easier to argue that certain uses of copyrighted material such as in memes might not entail infringement.

Some legal experts have hailed the changes as an important move that would align Singapore with other countries which are more flexible in deciding if copyrights are infringed or not, which is crucial during a time when people share videos, images and audio in huge volumes online.

Last week, the Ministry of Law (MinLaw) tabled a slew of changes under a new Copyright Bill to update the law. Among them was the proposal to use the more commonly known term "fair use", instead of the current "fair dealing".

Currently, there are some exceptions under fair dealing that permit a copyrighted work to be used without infringing those rights. Five factors determine this:

• The purpose and character of the use, including whether it is commercial in nature or for non-profit, educational purposes.

• The nature of the work or performance.

• How substantial is the amount of the work or performance used compared with the whole thing.

• The effect of the use of the content on the potential market for, or the value of, the work or performance.

• The possibility of obtaining the work in question in a reasonable time at the normal price it is being sold. MinLaw has proposed removing this fifth factor in the new Bill.

Professor David Tan, from the National University of Singapore's Faculty of Law, said the fair dealing term caused some confusion here as some people took it to mean Singapore's approach was like that of other jurisdictions like England, in which using copyrighted material could infringe rights if it does not fall neatly into specific uses.

But the change to fair use, and related matters, would make Singapore's copyright law "more future-ready and closer to the American system", he said, as the US model is not reliant on such pre-defined uses.

"This fair use definition allows the courts to better assess whether the (extensive collection) of technological and artistic uses are permitted uses," added Prof Tan.

Mr Samuel Yuen, managing director of law firm Yuen Law, said the fair use changes could also mean people can record concerts on their cellphones for their personal use.

But Prof Tan said the amendments would not mean anyone can freely repost or share content they did not create on social media.

For members of the public, this would likely be deemed fair use. However, for celebrities, influencers and businesses, the commercial aspect of their online accounts may result in a finding that the reposting is not fair use and thus infringes copyright, he said.

It will also depend on whether the meaning of the original work is transformed, such as making fun of it in a meme or criticising an aspect of it.

"It is highly unlikely that it is fair use if you post a video of yourself dancing or lip-syncing to an entire song. But if you change the lyrics and parody the original, then it is probably fair use," Prof Tan said.

Another proposed change to the Copyright Act says the original singer must be identified too, added Prof Tan.

But things can get murky even with the amendments - experts said it still varies from case to case.

How much of the original is used matters, said Mr Alban Kang, a partner at law firm Bird & Bird ATMD's intellectual property and technology group.

Mr Kang said if a netizen uses images from a cartoon or comic and replaces the text to make the work satirical, it might not pass the fair use test in Singapore because the law here does not explicitly recognise satire and parody as fair use, unlike in the United States.

Prof Tan said it is less clear if "caption memes", where text is superimposed on images, are considered fair use. But with memes that edit and alter the visuals considerably, it is more likely to be considered so.

While law experts noted there have not been many lawsuits on such matters here, "the fact that people don't take action doesn't mean it's not wrong", said Mr Kang.

"It's a question of whether the rights owner wants to take action, and what are the repercussions. And, generally, in Singapore, we are not such a litigious society. People do take that into consideration."