© : An Upgrade is Available

By Adrian Tan

From re-sharing cat videos to creating memes, tweaks in our three-decade-old Copyright Act will help clarify what’s permissible and what’s verboten as we continue to indulge in our insatiable appetite for social media.

Chinese New Year Eve, 2019. Social media was ablaze with a viral video (YouTube link) of an altercation between a Malay Gojek driver and his Chinese passenger objecting to a route that would incur ERP charges. The young woman’s histrionics when she was unable to open the car door, even with a Certis Cisco officer standing outside the stopped vehicle – “you’re taking me for hostage” (sic) and “is it because I’m Chinese?” – had Singaporeans spellbound.

In typical Singapore fashion, we were then treated to a flurry of parodies. Creative folks were inspired by the original viral video to create a wide range of messages, from pictorial memes to rap videos, with even some government agencies and corporations riffing off the incident to promote road safety and civil defence. Debates raged online as to the rights and wrongs of the duo, examining every aspect of the dispute: social, racial, or geographical.

After all, in today’s social media-driven world, virtually every discussion starts with a photo or a clip. A picture spawns a thousand words.

So that triggers another question: copyright. Were we allowed to forward that viral video? Were we permitted to create and share those memes and parodies?

The answer should lie with our Copyright Act. Yet, that law, enacted in 1987, was born in an era that knew nothing of viral videos, memes or social media. And for decades, Singapore has had to shoehorn real-life situations to fit with our Copyright Act.

But the good news is: an upgrade is available.

The Ministry of Law (MinLaw) and the Intellectual Property Office of Singapore (IPOS) have just released proposals to revamp and overhaul our venerable Copyright Act, to make it fit for a 21st century nation that creates, shares and devours information online. There are a total of 15 proposals which will become law, two of which I will delve into below.

Credit where credit is due

Under the existing law, people who create literary, dramatic, musical and artistic works don’t have a right to be identified as the creator. In legal terms, we say that the creator does not have a right of attribution.

That is unsatisfactory. Increasingly, creators and performers want their work to be widely shared and may not even care about receiving royalties each time that happens. But what many of them do care about being recognised for the impact that they make. So, the right of attribution is about valuing recognition, rather than valuing compensation.

The proposal by MinLaw and IPOS gives a right of attribution to two groups of people: extending the existing definition of authors beyond those of books, to include those of literary, dramatic, musical and artistic works; and performers of performances.

The proposal makes it clear that “proper attribution helps creators and performers build their reputation and incentivises creation of new works. This is especially important in the digital era, where works are easily misattributed or not attributed at all.”

Once the proposals become law, it will empower authors and performers to be named whenever their works are used, unless they specifically waive that right. This means that creators would receive better protection for their rights here, compared with some other developed countries, including the US, where creators of literary or musical works do not have such rights of attribution.

Making “fair use” easier

Forwarding, sharing, reviewing and commenting on stories, pictures and video clips – is that legal, or will that be copyright infringement? Under the Act, we can copy or use copyrighted matter, without the permission of the copyright owner, in limited situations. This is called “fair dealing” or “fair use”.

Copyright is designed to restrict the use of information to allow its owner to exploit his work commercially. But society has always understood that there should be limits to copyright. Artists are inspired by, and build upon, the works of other artists. So, it is important to allow artists to copy a little bit of an existing work, if it means that society will gain by having new creative work. That is the justification for fair use.

An example is Andy Warhol’s artwork, Campbell’s Soup Cans. It is depicts 32 prints of the famous Campbell’s Soup tins. The labels on those tins are copyrighted. Today, Warhol’s groundbreaking pop art style is so universally recognised and lauded that his pieces regularly trade for tens of millions. If society is enriched if artists are given more leeway to express themselves, and that is one justification for the fair use law.

As more of the economy goes tech-based, the fair use exception also allows each successive generation of programmers and entrepreneurs to develop and refine the ideas and products of the previous generation. The graphic user interface that has become ubiquitous today was created by Xerox Parc in the 1970s, refined by Apple in the 1980s and popularised by Microsoft in the 1990s. If people were forced to start from scratch each time a programme is written, 2019’s smartphones may still bear character-based interfaces.

To help determine if something amounts to fair use, the Copyright Act takes into account five factors. These include the purpose and nature of the use of the work, the nature of the work itself, the amount of material to be copied, and the effect of your copying on the work’s value.

Then there is that final factor in our Copyright Act, which has always been controversial. The idea behind it was this: if you could have obtained the right to copy the work within a reasonable time at an ordinary commercial price, and you didn’t, then it would be hard for you to claim fair use. But in today’s fast-moving world, what would “reasonable time” mean? And who is to say what an “ordinary commercial price” is? The proposal is now to junk this fifth factor, removing a great deal of uncertainty from the process, making the arguments for fair use a lot fairer.

Reading the proposals

The Copyright Act is an important piece of legislation that matters to you if you are in the technology industry, or the creative industry, or the news industry, or in academia, or advertising.

Or if you simply use social media. The two proposals I highlighted are particularly relevant, because they make it a little bit easier for us to share and discuss matters, while reminding us to give credit when we use someone else’s work. There are a bunch of other proposals, dealing with a wide range of questions. How long should we protect unpublished works? Can we use works if we do not know who the owner is (we call those “orphan works”)? Should we be allowed to copy works simply for data-mining? Should we make it easier for libraries, museums and archives to copy works? Should we allow people to make and distribute works for print-disabled users, without paying remuneration?

Why so many questions? Our copyright law deals with the stuff of everyday life. In an increasingly interconnected world, where data is the new currency and the rate of creation and innovation is growing explosively, we cannot be held “for hostage” to outmoded intellectual property laws.


TSMP law corporation