Copyright infringement cases are not as common as debt recovery, divorce, or tenancy disputes. In fact, barely a handful of them gets decided by the Singapore High Courts in a year. However, with the advent of social media and this generation’s vulnerability to sharing and posting information online, there is a need for people to know their underlying rights and obligations when dealing with intellectual property.
What is Copyright?
Understanding what is copyright is the key. Copyright protects the expression of ideas in tangible forms. If your work is copyrighted, that means you have the right to prevent others from reproducing, publishing, performing, communicating to the public, or adapting your work and you control their use and commercial exploitation.
These rights are specifically provided for under the Copyright Act of Singapore (2021) which states that the copyright owner of an artistic work has the exclusive right to make a copy of the work, publish the work if it is unpublished, and communicate the work to the public. In addition, a copyright owner also has the exclusive right to perform the work in public, make an adaptation of the work, and rent the work.
Duration of Copyright
In Singapore, copyright protection is conferred upon a work at the moment of its creation. Thus, registration is not a requirement, or compliance with other formalities is not needed before a work is accorded copyright protection.
Different types of works are also conferred different durations of copyright protection. For example, literary, dramatic or musical works are protected from their creation up to 70 years after the year of the author’s death. Meanwhile, photographs, sound recordings, and films are protected within 70 years of first publication, and broadcast and cable programs are protected within 50 years of the year of first publication.
As provided under the Copyright Act, copyright infringement can occur if someone does any of the above-mentioned exclusive rights without permission or license from the copyright owner.
An example of an infringing activity is posting a literary or artistic work on a blog without crediting the owner, may it be a piece of writing or a photograph.
To successfully debunk a claim of copyright infringement in Singapore, the copying must fall under any one of the three categories stated below:
- there is a license or permission from the copyright owner;
- the copying is within the scope of one of the permitted uses; and
- the copying does not involve a substantial taking of copyright material.
Fair Dealing Doctrine
There is a defence that can be used in copyright infringement and that is the “fair dealing” exception. This means that a person will not be liable for copyright infringement if the use of a copyrighted work qualifies as “fair dealing.”
Likewise, Section 191 of The Copyright Act also provides a non-exhaustive list of factors that the court will take into account in deciding if a use of a copyrighted work is “fair.” These factors can include:
- the purpose and character of the use;
- the nature of the work one is using;
- the amount and substantiality of the portion of the work used in relation to the whole work; and
- the effect on the potential market for, or value of, the work.
This list of factors though is not exclusive and the court may take into consideration other attending circumstances like good faith of the other party and the character of the use especially if it is imbued with public interest. Ultimately, the decision of the court will depend on the unique circumstances of each case.
Under normal circumstances, the breach of copyright typically leads only to civil liability. This entitles a copyright owner to damages or other civil remedies such as an injunction. But in some cases where a copyright owner is able to establish an intention to “exploit for commercial purposes” or actual “commercial exploitation” of infringing copies, there could be a criminal liability and the court may award a heavy fine or a term of imprisonment or both.
Under Section 119(4) of The Copyright Act, additional damages may also be awarded against the infringers when an infringement of copyright is established and the court is satisfied that it is proper to do so, having regard to – the flagrancy of the infringement, any benefit shown to have accrued to the defendant by reason of the infringement, and all other relevant matters.