COPYRIGHT BILL (As reported from Select Committee)

Order for Third Reading read. 2.56 pm

Mr Deputy Speaker: Notice has been given by the Minister for Law of amendments in respect of clauses 7, 32, 33, 70, 74, 104, 105, 137, 138, 142, 185, 211, 219 and 235 as set out in the Order Paper Supplement. The Bill accordingly stands recommitted to a Committee of the whole House in respect of those clauses.

Bill considered in Committee.

[Mr Deputy Speaker in the Chair]

Clause 7 -

Prof. Jayakumar: Sir, I beg to move,

In page 18, line 16, to leave out from "which" to the end of line 17, and insert "was carried out without the consent of the owner of the copyright;".

Sir, this amendment is also related to the amendments to clauses 32, 33, 104, 105 and 142. These clauses prohibit the importation into Singapore of certain types of articles for the purposes of trade. The clauses as they are presently drafted prohibit the importation for the purposes of trade of foreign articles if they are actually made in breach of the copyright laws of the country of manufacture. However, if they are made in a country where there is no adequate protection given to intellectual property, they may be technically legitimate reproductions in the country of manufacture and therefore may be freely imported into Singapore. Imports from countries which offer little or no copyright protection will undermine the interests of copyright owners in Singapore. Whilst we, Parliament, cannot stop the manufacture of these articles outside Singapore, we are in a position to stop them from coming into Singapore.

The amendments also seek to extend the prohibition to the importation of copies under statutory licensing schemes in the country of manufacture which are not meant for export.

Amendment agreed to.

Clause 7, as amended, ordered to stand part of the Bill.

Clause 32 -

Prof. Jayakumar: Sir, I beg to move,

In page 38, line 27, to leave out from "article" to the end of line 29, and insert "was carried out without the consent of the owner of the copyright.".

Sir, the explanation which I just gave for the amendment to clause 7 applies here as well.

Amendment agreed to.

Clause 32, as amended, ordered to stand part of the Bill.

Clause 33 -

Prof. Jayakumar: Sir, I beg to move,

In page 39, line 1, to leave out from "article" to the end of line 2, and insert "was carried out without the consent of the owner of the copyright.".

The same explanation given for the previous two amendments apply here.

Amendment agreed to.

Clause 33, as amended, ordered to stand part of the Bill.

Clause 70 -

Prof. Jayakumar: Sir, I beg to move,

In page 67, lines 17, 20 and 22, to leave out "object", and insert in each case "useful article".

Sir, clause 70 is amended to make it clear that the exception to artistic copyright in this provision applies in respect of the making of functional objects. Clause 70 is intended to restrict the copyright protection accorded to drawings of functional objects by limiting the protection in terms of the three dimensional reproduction right to 15 years.

Amendment agreed to.

Prof. Jayakumar: Sir, I beg to move,

In page 67, line 19, to leave out "object", and insert "article".

The explanation I just gave for the first amendment applies.

Amendment agreed to.

Prof. Jayakumar: Sir, I beg to move,

In page 68, after line 4 to insert:

"(4) In this section, "useful article" means an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.

(5) For the purposes of this section, an article that is normally part of a useful article is considered a useful article.".

Sir, the previous two explanations are equally relevant here.

Amendment agreed to.

Clause 70, as amended, ordered to stand part of the Bill.

Clause 74 -

Prof. Jayakumar: Sir, I beg to move,

In page 71, after line 3 to insert -

"(6) The regulations made for the purposes of this section may make provision for determining the circumstances in which a design is, for the purposes of this section, to be deemed to be applied industrially.".

Sir, the new subclause (6) to clause 74 seeks to provide for the making of regulations to define the term "industrially applied" used in that clause. Such an express power is necessary, and clause 74 (b) is similar to section 10(5) of the United Kingdom Copyright Act, 1956.

Amendment agreed to.

Clause 74, as amended, ordered to stand part of the Bill.

Clause 104 -

Prof. Jayakumar: Sir, I beg to move,

In page 80, line 32, to leave out from "article" to the end of line 34, and insert "was carried out without the consent of the owner of the copyright.".

Sir, the reasons which I gave for the amendment to clause 7 applies for this amendment as well.

Amendment agreed to.

Clause 104, as amended, ordered to stand part of the Bill.

Clause 105 -

Prof. Jayakumar: Sir, I beg to move,

In page 81, line 4, to leave out from "article" to the end of line 6, and insert "was carried out without the consent of the owner of the copyright.".

Sir, here too the explanation I gave for the amendment to clause 7 applies.

Amendment agreed to.

Clause 105, as amended, ordered to stand part of the Bill.

Clause 137 -

Prof. Jayakumar: Sir, I beg to move,

In page 97, line 13, to leave out "part", and insert "Part".

This is a drafting amendment.

Amendment agreed to.

Clause 137, as amended, ordered to stand part of the Bill.

Clause 138 -

Prof. Jayakumar: Sir, I beg to move,

In page 97, lines 37 and 38, to leave out "such work or other subject-matter", and insert "any such infringing copy".

This is also a drafting amendment.

Amendment agreed to.

Clause 138, as amended, ordered to stand part of the Bill.

Clause 142 -

Prof. Jayakumar: Sir, I beg to move,

In page 99, line 7, to leave out "constituted an infringement", and insert "was carried out without the consent of the owner".

The explanations which I gave for the amendment to clause 7 applies here also.

Amendment agreed to.

Prof. Jayakumar: Sir, I beg to move,

In page 99, line 9, to leave out "in the country in which the copy was made".

The same reason applies in this amendment as well.

Amendment agreed to.

Prof. Jayakumar: Sir, I beg to move,

In page 99, after line 26, to insert -

"(5) Subject to the regulations made under this Act, the Board may permit copies of a work, a cinematograph film or a sound recording that are liable to be seized and forfeited under this section to be delivered to the importer upon security being given to the satisfaction of the Board that the copies will be forthwith exported from Singapore."

Sir, clause 142 is amended to give an extra power to the Trade Development Board to restrict the importation of infringing copies of works, films and sound recordings. In addition to the right to seize and forfeit the infringing copies, the Trade Development Board may order the re-export of the infringing copies from Singapore upon security being given to the Board. Such copies are therefore prevented from entry into the domestic market.

Amendment agreed to.

The Chairman: Consequential amendments will be made:

(1) To renumber subclauses (5), (6) and (7) as subclauses (6), (7) and (8), respectively.

(2) In page 100, line 7, to leave out "(6)", and insert "(7)".

These will be done.

Clause 142, as amended, ordered to stand part of the Bill.

Clause 185 -

Prof. Jayakumar: Sir, I beg to move,

In page 130, line 30, to leave out from "original" to the end of line 26 in page 131, and insert - "work, or a sound recording or a cinematograph film is made by or under the direction or control of an international organisation to which this Act applies in such circumstances that copyright would not subsist in the work, sound recording or cinematograph film apart from this subsection -

(a) copyright shall subsist in the work, sound recording or cinematograph film;

(b) that copyright shall subsist so long as the work, sound recording or cinematograph film remains unpublished; and

(c) the organisation shall, subject to Part X, be the owner of that copyright.

(4) Where an original work, or a sound recording for a cinematograph film is first published by or under the directio, other than an edition that reproduces a previous edition of the same work or works, is published by, or under the direction or control of, an international organisation to which this Act applies in such circumstances that copyright would not, apart from this subsection, subsist in the edition immediately after the first publication of the edition -

(a) copyright shall subsist in the edition;

(b) that copyright shall subsist until the expiration of 25 years after the expiration of the calendar year in which the edition was first published; and

(c) the organisation shall, subject to Part X, be the owner of that copyright.".

Sir, the amendments to this clause as well as the amendment to clause 235 are related. The existing clause 185 is modelled on section 33 of the United Kingdom Copyright Act, 1956. Under the existing clause it is not altogether clear as to whether the international organizations to which the new law will apply will enjoy copyright protection in respect of subject matter which are their official publications or made under the direction and control of the organization. The amendments seek to clarify that subject matter are protected. The amendments are modelled upon sections 187 and 188 of the Australian Copyright Act, 1968. Consequential amendments have been made to clause 235 to make it clear that the protection accorded under this clause is not retrospective.

Amendment agreed to.

Prof. Jayakumar: Sir, I beg to move,

In page 131, lines 27 and 28 and 31, to leave out "that Part", and insert in each case "those Parts". It is a drafting amendment.

Amendment agreed to.

The Chairman: A consequential amendment will be made: To renumber subclause (5) as subclause (6).

This will be done.

Clause 185, as amended, ordered to stand part of the Bill.

Clause 211 -

Prof. Jayakumar: Sir, I beg to move,

In page 148, lines 27 and 28 and 34, to leave out "any part of the British dominions", and insert in each case "a country".

Sir, the amendments to clauses 211 and 219 are of a drafting nature. The amendments will substitute the use of the term "British dominion" in those clauses with a more neutral term "country".

Amendment agreed to.

Clause 211, as amended, ordered to stand part of the Bill.

Clause 219 -

Prof. Jayakumar: Sir, I beg to move,

In page 153, lines 17 and 24, to leave out "any part of the British dominions", and insert in each case "a country".

The explanation is the same as I gave for clause 211.

Amendment agreed to.

Clause 219, as amended, ordered to stand part of the Bill.

Clause 235 -

Prof. Jayakumar: Sir, I beg to move,

In page 156, line 25, to leave out "(5)", and insert "(3)".

The reason for this amendment is the same as that I gave for the amendment to clause 185.

Amendment agreed to.

Prof. Jayakumar: Sir, I beg to move,

In page 156, lines 26 and 27, to leave out ", first published, or to an edition published,".

The same reasons apply.

Amendment agreed to.

Prof. Jayakumar: Sir, I beg to move,

In page 156, line 28, at end, to add -

"(2) Section 185(4) shall not apply in relation to sound recordings or cinematograph films first published before the commencement of this Act.

(3) Section 185(5) shall not apply in relation to an edition published before the commencement of this Act.".

The same reasons as I have mentioned for the two previous amendments apply.

Amendment agreed to.

The Chairman: A consequential amendment will be made:

In page 156, line 25, after "235.", to insert "-(1)"

This will be done.

Clause 235, as amended, ordered to stand part of the Bill.

Bill reported with amendments.

Third Reading

Mr Deputy Speaker: Third Reading, what day?

Prof. Jayakumar: Now, Sir. I beg to move, "That the Bill be now read a Third time."

Sir, the Select Committee on this Bill received 34 written representations. They came from both copyright owners as well as consumers of copyright materials. Hon. Members can see from the Report of the Select Committee that the representations covered many aspects of copyright law.

The representations received by the Select Committee show that the Bill was generally welcomed by copyright owners. However, they wanted certain amendments to extend and make more effective the protection available to them. Consumers, on the other hand, expressed fears that the new proposed copyright law might stifle research or deny adequate access to information.

The Select Committee's approach was to bring about a balanced copyright environment. That is to say, to provide adequate protection to creative works and, at the same time, give due recognition to the consumer interest in the availability of creative works. In particular, the interest of our educationists and students was not to be ignored.

The Select Committee also took into account the fast-changing technology and the need for a copyright regime which is responsive to technological change. In this regard, it took into account that outdated legislation will impede economic growth, particularly since our economy is increasingly service-oriented, with an increasingly important role for the creation, transmission and processing of information. Modern copyright legislation would also serve to attract investments, particularly in the field of computer software and information technology. The Bill, as amended by the Select Committee, is in accord with our objective of promoting Singapore as a regional research and development centre.

I do not propose to go into all the provisions of the Bill because Members would have read the report of the Select Committee and also because we have had a fairly exhaustive debate during the Second Reading when the main principles were canvassed. I therefore intend to focus only on certain significant amendments of the Select Committee.

Burden of proof

First, I will take the question of burden of proof. Under the original provisions of the Bill, it was necessary for the prosecution or the plaintiff in criminal copyright proceedings or in secondary civil proceedings for copyright infringement, to establish that the accused or defendant knew that he was dealing with infringing copies. Establishing "guilty knowledge" can be an extremely major and costly obstacle for the prosecution or the plaintiff. The Select Committee recommends therefore that the requirement for "guilty knowledge" in criminal copyright offences or civil secondary infringements be made less stringent. Under the amended Bill, the burden of proof remains with the prosecution or the plaintiff, as the case may be, but the prosecution or the plaintiff need to show that the accused or the defendant ought to reasonably have known that he was dealing in infringing copies.

Civil and criminal remedies

Turning to civil and criminal remedies, amendments to the Bill are also made in relation to the civil and criminal remedies for copyright infringement. The Select Committee amended the Bill to abolish conversion damages and in substitution, gave the plaintiff a right to delivery-up of infringing copies and contrivances used for the manufacture of copies or equitable damages in lieu of delivery-up. The Select Committee also amended the Bill to give our courts the power to take into account, when awarding costs in civil suits, any unreasonable challenges made by defendants to the presumptions as to the subsistence and ownership of copyright. On the other hand, a clause has been inserted (at the suggestion of the Law Society) to provide a remedy against groundless threats of legal proceedings.

Possession for purpose of trade

As I have emphasized before, possession per se of infringing copies is not an offence. As regards criminal sanctions, the Bill has, however, been amended to include two new offences. The first is an offence of being in possession of infringing copies of any category of works and other subject-matter for the purposes of trade having cause to know or knowing it to be such. A person who is in possession of five or more infringing copies is presumed to be in possession for the purposes of trade. But this is a presumption which is rebuttable.

Let me add, however, that possession of infringing copies of sound recordings for purposes of trade is already an offence under Singapore's existing copyright laws and that this provision is not altogether alien to our legal system. The amendment also has precedent in other countries. The second new offence is that of unauthorized public performances of films, other than by a radio or television receiver, for private profit.

Consumer interests

Let me turn to consumer interests, Sir. The Select Committee has not overlooked consumer interests. Some of the amendments to the Bill take into account the interests of users of copyright materials. Since copyright law gives the author or creator a monopoly over the use of his work, it is essential if learning is not to be stifled that certain exemptions must be created. In particular, the Select Committee has made refinements to the "fair dealing" provisions for works in this Bill. Several new "fair dealing" provisions have been introduced in relation to the new categories of copyright-protected subject matter, namely, sound recordings, films, published edition, broadcasts and cable programmes. I also wish to draw your attention to clause 114 which makes it clear that home-taping of TV and Radio programmes does not amount to an infringement. Clauses 109, 110 and 111 are similar to the "fair dealing" provisions which are applicable to works. The new types of copyright-protected subject matter are commonplace features of everyday life and are used widely by the average citizen in the same manner as books and periodicals. It is only reasonable therefore to extend the concept of "fair dealing" in relation to works, to also cover legitimate uses of new categories of copyright- protected subject matter.

Other amendments were also made by the Select Committee after taking into account the increasingly widespread use of audio-visual materials in libraries, archives and educational institutions. Clauses 112, 113 and 115 create exceptions to meet the needs of researchers, students and educationists. The copyright in artistic works which are not registrable under designs law has also been restricted where such works have been applied to the manufacture of functional objects. In such cases, the period of copyright protec- tion is limited to a maximum of 15 years from the date of first industrial application.

Parallel imports

Let me turn to the question of parallel imports. Sir, several representations to the Select Committee dealt with the question of parallel imports. Parallel imports, in the context of copyright legislation, refer to the import into one country of goods lawfully made or sold in another country by or with the consent of the copyright owner to such manufacture; in other words, legitimate reproductions. Some representors urged the Select Committee to ban parallel imports whereas others equally vigorously argued that parallel imports should be permitted. After hearing both sides, the Select Committee decided that the Bill should be amended to make it clear that parallel imports are not prohibited. Incidentally, Sir, the amendments which we have just adopted do not change this position. The Bill, as amended by the Select Committee, will prohibit only the importation of copies which are made in countries without copyright legislation without the consent of the copyright owner, copies made without the consent of the copyright owner under a statutory licence. The consent that we are talking about, Sir, is consent by the copyright owner to the manufacture in the other country, not to the importation by Singapore.

If dealings in parallel imports are prohibited, consumers may be denied the opportunity to purchase a lower-priced but legitimate edition of a work merely because the edition originates from some other country. The Select Committee was particularly impressed by evidence presented to it of large price differentials of authorized editions of copyright materials, in particular books, originating from different countries. Further, any restriction on parallel imports will serve to benefit the exclusive licensee more than the copyright owner. In any case, the copyright owner would already have been paid royalties by the overseas manufacturer of the parallel import. A prohibition on parallel imports may create a monopoly for the exclusive licensee. This in turn will encourage price-fixing arrangements and other restrictive trade practices which cannot be in our public interest. The approach taken by other countries in relation to parallel imports has been far from uniform which is understandable as this is attributable to the varying economic situations of different countries.

Finally, the Select Committee also received numerous representations calling upon the Government to enter into copyright relations with certain countries or to join in some international copyright convention. The Government recognizes that the ramifications of copyright are world wide since intellectual creative activity and the arts are not confined to national boundaries. The Bill, as amended by the Select Committee, will enable the Government to establish copyright relations with other countries and will provide a standard of copyright protection that is compatible with that of the Universal Copyright Convention. Singapore will consider acceding to the UCC in the future.

Sir, I beg to move.

Question proposed.

Mr Chandra Das: Mr Deputy Speaker, Sir, I would like to make some comments on the Copyright Bill as introduced by the Minister. Sir, firstly, I would like to congratulate the Minister and his officials for the breakneck speed at which this legislation has come before this House. A tremendous amount of work was done in the Select Committee as it can be seen from the 34 written representations received from the various organizations and interested groups.

Sir, it must be pointed out that there has been considerable pressure from developed countries, particularly the United States of America, for the enactment of this piece of legislation. Whilst we have done everything possible to comply with the demands of the developed countries, I think it is necessary for the developed countries to recognize the swift action taken by the Singapore Government. I only hope, Sir, that the speed at which the Singapore Government and its officials reacted to the US request will not be reciprocated by the US Congress passing through 300 or 400 trade restrictive Bills at the same breakneck speed. Sir, the US and other developed countries hopefully will reciprocate the action taken by the Singapore Government with more liberal trade policies towards Singapore.

Many countries have paid lip service to the question of copyright and protection of intellectual properties. Some countries, I am told, have acceded to all the requests and pressures by the US by enacting the necessary pieces of legislation. But, Sir, we know, in practice, this will be totally disregarded. Unfortunately, Sir, the case in Singapore is slightly different. I am sure the Government will strictly enforce the legislation once it is passed in this House. Sir, it is our hope that we will not be punished further for adopting these restrictions by more restrictive trading practices and conditions in our developed markets. Let us hope that our trust is not misplaced.

Sir, the second point I would like to make is to refer to the question of parallel imports. During the Second Reading of this Bill in this House I urged the Minister to seriously look at the question of parallel imports. It is very gratifying to hear the Minister when moving this Bill in this House a few minutes ago that he has given serious consideration to this request, and I am sure the necessary changes introduced will benefit consumers as a whole. This will definitely discourage price-fixing and will be in the general interest of all Singaporeans.

Finally, Sir, I would like to look at some positive aspects as a result of the enactment of this Bill. Some manufacturers and businessmen will necessarily go out of business with the coming into operation of this Bill. I think Government agencies like the Economic Development Board, the Trade Development Board can do much to help some of these businesses. Government should identify such companies and assist them to enter into licensing or franchise agreements with holders of the original rights so that these works and items can be manufactured or produced in Singapore legally for consumption not only in the Singapore market but also for consumption in the regional market. Whilst this will definitely keep some of our businesses alive, it does also help to reduce prices. If these works can be produced in Singapore as a result of franchise or licensing arrangements, it will be beneficial not only to consumers in Singapore but also our regional market.

Mr Deputy Speaker, Sir, I would urge the Government agencies responsible to explore this area with some urgency. Sir, I support the Bill.

Mr Jek Yeun Thong: Mr Deputy Speaker, Sir, I support the Bill in principle, therefore I chose not to speak on its Second Reading. But that does not mean that I have nothing to say. I would like to take this opportunity to offer some comments on the clauses and amendments and new provisions, particularly on those connected with computer software and also on what the Minister has just said.

To me the history of human civilization is a process of copying and re-copying. Perhaps after a gloomy session this morning, no one now has any heart to listen to stories. But I would still like to try to tell one. Once upon a time, in time immemorial, someone had invented a wheel. Then after thousands of years another one copied the idea and put a piece of plank on top of two wheels and a cart was born for people to push things or pull things. Then after thousands of years someone copied that idea again, and this time he put a horse in front of the cart and they had a horse carriage. So this went on until the last century when James Watt replaced the horse with a steam engine and we have the first train. And a German named Carl Friedrich Benz replaced the horse with a combustion engine and we have the first motorcar. So if copying was not allowed, there would be no human civilization and progress as we know them today. And if copying was strictly prohibited in the past, then today we would be climbing trees instead of climbing escalators.

Now we are in a predicament. We want to catch up with the West in the field of science and technology. We want to find out how things are done and how to produce them cheaply, more cheaply. Yet at the same time the British and the Americans have sold us the idea that these advancements in the scientific world, the computer, its software, etc, etc, etc, are what they call "intellectual property" and we are not supposed to touch them or use them unless we have paid them the royalties. Well, as a government which upholds high moral and integrity in the business world, what are we going to do with the relentless pressures and lopsided arguments from the MNCs? Not to yield we will be branded as thieves and pirates and they will threaten to do this or that. But to do so we might tie ourselves in cocoons and we cannot do this or that. What will happen to the parents and young students who have spent thousands of dollars on computer hardware? They will find that they cannot afford to buy software for experiment on their computers anymore.

Many small companies which have bought micro-comptuers and copied programs to run their business will also find themselves in deep trouble. Suppose there is some problem with a computer, a bug has been found or the computer hangs - to use some of the jargons in computeries - would the company be able to call the computer company and ask for servicing? Or would the computer company dare to go to service it? There is also another tricky problem which the new provision for local area net work known as LAN will not solve. You see, technically, a digital watch, a calculator or a micro-computer are products of the same concept. They all depend on micro-chips for their functions. In the case of a digital watch, the command language or the software or the operating system, whichever way you want to call it, is worked into a chip and the price for the watch includes the chip, so that after you have bought the watch and put in the battery, it will start functioning and telling you the time. The same goes with a calculator. But in the case of a micro-computer, it is different. The clever MNCs make sure that anyone who buys it is forever tied on to their apron. The Member for Bukit Timah will probably bear me out that the micro-computer, far from popular belief, is a dumb machine when you first buy it. It will not work nor respond to your commands unless you put in a software called DOS (Disk Operating System) and load it. And for that you have to pay extra. With it you can run word processing program such as Wordstar or Display Writer or Spreadsheet programme such as Lotus 1, 2, 3, Symphony, Framework, whatever you can think of, etc, etc. Without it, the computer is a piece of junk. It is worse than a manual typewriter. You cannot make it work.

So using the analogy of the digital watch or the calculator, the producer should be able to work the DOS into a chip and incorporate the chip into the computer. Well, they could have done it but they chose not to. The purpose, of course, is to make more money out of us and to make us forever dependent on them. And if we start modifying or copying we would be infringing on their rights. What is even worse is that this programme like any other programme, always comes with a condition or warning printed on the manual to say that although you have bought the program, it is not your property and you are only licensed to use it to run on one machine and one machine only. So if you have, say, 10 machines in your office, in practice you could use the same diskette to load all the 10 machines or copy the programme into 10 diskettes to run the machines separately. But in law if you do that you will be infringing on their rights. At least that is what their condition of sales says.

Now the tricky problem is this. Many companies or banks, as the Member for Jalan Kayu will bear me out, install micro-computers to run not in a land environment but as a stand alone - you know what I mean by "stand alone"? This is another jargon. In other words, they run the machines not as slave machines linked to a master machine but as independent machines. So normally, at least before this Bill appears, the organization would buy, say, 10 machines and one copyrighted programme, say, Lotus I, II, III, and have it copied into 10 sets of diskettes and run them in the machine separately. But with this law coming into force, would they still be able to do the same? Frankly, I do not know the answer and I do not want to know.

The world is not a simple place to live in and we have to be on guard all the time. It is very well to say that we must be straight and forth and honest and try to be gentlemen. But if we are gentlemen and the others are not gentlemen, we will end up being poorer men. The Americans are our friends in the free world. But are they our friends in the business world? The Americans say they are our friends and, if so, why do they grudge us for selling a few thousands more pieces of our garment products in their vast market? They say they want to help us. If so, then why when it suited their purposes, did they see nothing wrong in imposing a sudden ban on our export of tropical fish to make us bow to what they want in the Wildlife Protection Convention? They say other people are thieves and pirates, and yet they are now being sued by the French for stealing from a French institution the technique of isolation of the Aids virus. How did it happen? I do not know because I am not interested in it.

As I said before, if copying were made a crime in days gone by, there would be no progress in human history. The Japanese were the biggest copycat in Asia. Before the war they copied and produced everything the West produced, and sold them cheaply. And after the war, they brought in motorcars, cameras, hi-fi systems from the West, dismantled them, found out how they were made, improved on their components, and they are now producing better and cheaper ones. This is what they call "reverse engineering". If we cannot have this, how can we progress? If our young ones are denied cheap source of software and hardware, how can they learn; how can they experiment; how can they discover; and how can they invent? Someone may want to point to the story about the race between the rabbit - the Rabbit Year is coming - about the race between the rabbit and the tortoise and say that if we are honest and steady, we will catch up one day. But the trouble is that the Rabbit we now face is a smart and cunning one. Before the race has even started, he wants the tortoise to tie up its two legs. So how are we going to take off? What is worse is that the rabbit can turn out to be a rude and crude one.

The other day I was very angry when I read in the Straits Times about the dispute, the quarrel between the residents of Pine Grove and the Singapore American Community Action Council over the playing of American football in a field near there. The Director of the Council, instead of apologizing for inconveniences caused to the residents, was reported to have said that this was their way of life and if others did not like it, it was too bad. He even said that this was the choice of the residents and so they had to live with it. Of course, we have to live with our choice. But we do not necessarily have to live with the Americans! It may be true that they can do whatever they like in America. Who says that they can do whatever they like in Singapore? Who says that they can put up loudspeakers and floodlights and make noise until 10 or 11 o'clock at night? Have they got a Police permit to do so?

Well, I may have gone astray but all these questions are not really directed at the Minister and his Ministry. Because I know that his Ministry is only a coordinator of various requests from the Ministries who, in turn, are under pressure that they must do this or do that, otherwise look out and so on.

Thank you. 3.47 pm

Dr Arthur Beng Kian Lam: Mr Deputy Speaker, Sir, when I spoke during the Second Reading of this Bill on the 5th May 1986, I expressed the concern that the Select Committee should not overlook the interests of the bona fide individual who may have a legitimate need for making a copy of a book or videotape for his own private or personal use as opposed to commercial purposes. I am glad that the Select Committee has been fair in its approach to provide for protection of consumer interests and, in particular, the interests of educationists, students and researchers.

However, Sir, in this context, I would like to seek several clarifications. May I first refer to clause 136(7)? Here it is stated:

'... any person who has in his possession 5 or more infringing copies of any work or other subject-matter shall, unless the contrary is proved, be presumed -

(a) to be in possession of such copies otherwise than for private and domestic use; or

(b) to be in possession of such copies for the purpose of sale.'

Sir, my contention is that to presume guilt on the basis of possession of five copies may be too restrictive despite provisions made in clause 51 which refers to the Copying of Works in Educational Institutions. If we consider 40 students to a class in schools or tutorial groups of 10 in the University or an in-house seminar of a large multi-national company, this problem is evident. To presume guilt in this case "unless the contrary is proved" would place a heavy burden on the layman as it would involve consulting lawyers, legal expenses and also embarrassment. Indeed this fear is expressed by the written representation of the Consumers' Association of Singapore in Paper S.C. No. 15 on page A91, item 3, paragraph 1. This problem would also apply to choral groups in schools or churches where maybe 40 or 50 copies of a song may be required. I hope the Hon. Minister will clarify on this clause.

Sir, the next point that I would like to seek clarification is regarding the implementation of this Bill. Many of the areas covered in this Bill affect our activities of daily living, eg, photocopying, videotaping or screening of videotapes, use of overhead projectors, providing for piped music in waiting areas, offices, hotels or shopping complexes. Now, the danger is that one may unknowingly contravene the law. This fear is well expressed by the representation from the Singapore Hotel Association in Paper S.C. No.14 on page A86. In the third paragraph, the Executive Director of the Singapore Hotel Association expresses the fear that:

'For practical purposes, it is difficult for hotel operators, many of whom may not have sufficient knowledge of the subject matter to ascertain if a performance is an infringement of copyright.'

Paragraph 4 also highlights the problem of control besides knowledge, as function rooms may be hired out to organizations who arrange for their own entertainment. These organizers, again being lay people, may also be ignorant of the Copyright laws. It is my view that in view of the complexity of the Copyright laws and the varying circumstances, the public should be protected from prosecution in that they should first be warned by the copyright owners or the authorities that there is an infringement of the law. A first warning also complies with the spirit of this Bill as it is meant to give the authorities the power to act against the recalcitrant or the big-time trafficker, not an ignorant first offender. Furthermore, it would immensely assist the public if the public could be informed of the procedure to apply for permission to use copyright works. I also hope that the procedure would be a simple one, eg, just filling out a simple form.

Finally, Mr Deputy Speaker, Sir, I am perturbed by the attitude shown in some of the representations made. But I am glad that the Select Committee has stood firm in asserting the sovereignty of independent Singapore and in seeking for a Bill which is fair both to the copyright owners and the public in Singapore. Let me just quote two instances.

Example 1, Minimum Mandatory Sentences or Fine. The representation by the Motion Picture Association of America Inc. recommended minimum mandatory sentences or fines to the Select Committee, in spite of the Bill's intention to introduce hefty penalties. The Select Committee questioned in paragraph 212, page B41, why this was being urged on Singapore when neither the United States nor the United Kingdom (nor Australia in paragraph 210) have such a provision in their laws. The Select Committee wisely rejected this unfair imposition on Singapore.

Example 2, Performances by School Bands and Orchestras. Sir, here I refer to the representation made by the International Confederation of Societies of Authors and Composers on page B3. The Bill had sought to exempt School Bands and Orchestras from the Copyright Bill as long as the performances were made "in the course of the activities of the institution" (Clause 22(1)). The performance could be in the institution or outside the institution, but must be in the course of the activities of the institution. The International Confederation felt that this clause was unacceptable as seen in paragraphs 18-21 on page B3. To quote from para- graph 19, they said, "why should the composer donate his services free?". I am again glad that the Select Committee stood firm in this case, especially when the petitioners in paragraph 21 have admitted no abuse of this clause to their knowledge to date in Singapore. We would thus not put on our students and teachers the onerous task of applying for permission or paying royalty when they perform "in the course of the activities of the institution" on occasions like National Day or their School Anniversary.

Mr Deputy Speaker, Sir, I support this Bill, and congratulate the Committee on the successful completion of what must have been an exhaustive and trying one. Thank you, Sir. 3.55 pm

Mr Chiam See Tong: Mr Deputy Speaker, Sir, the Government in going ahead to amend this Copyright Bill has taken a very brave step. In fact, I would say that this is a watershed legislation which has, I would say, turned our daily living upside down. All these people who are involved in audio visual, photocopying, and whose shops we see all over the country will be affected, and I can see the concern of the Member for Queenstown.

We know that Singapore is under pressure from the Americans, especially business people in America, to have our laws amended. They feel that once Singapore has amended the laws, because they say we are the cultural, social and economic leader of this part of the world, perhaps they could get other countries to do likewise. Singapore has complied. I hope the Americans will take note of the big sacrifice that Singapore has made and accordingly reciprocate the favour we have done them.

This Bill also has strong repercussions in Singapore. This will make us aware that in fact creative works are expensive and intellectual properties are something which we have to pay. Up to now, I think our students are brought up in an atmosphere where they think all these can just be plucked from the tree, so to say. Now they know that all these creative works are costly things. This I am sure will create a different kind of attitude in our students.

The Member for Queenstown has mentioned about copying. He mentioned about the Japanese buying motorcars, cameras, what have you, and stripped them and tried to copy and make similar products. And since then they have improved and they even make better and cheaper motorcars. This reverse engineering by the way has to be highlighted. It is not illegal. Reverse engineering is a bona fide business activity which can be done. And in view of this copyright law that is just about to be passed in Singapore, I would urge the Singapore Government to have institutions to carry out this activity known as reverse engineering. In fact, we must make it part of our economic activity. Because, as you have seen in South Korea, they have done it and they are very successful. I believe Taiwan has also embarked on this. In the case of Hong Kong, of course, they have China. They can depend on China's hinterland and their trade. But in Singapore, how are we going to survive with this copyright law? I hope the Government would not only have such institutions to have what is known as reverse engineering but also to have a more liberal society and perhaps make an environment where creative works can be more easily carried out.

Dr Wang Kai Yuen (Bukit Timah): Mr Deputy Speaker, Sir, first of all, let me join my colleagues in commending the Select Committee under the leadership of the Minister in doing an excellent job on this Copyright Bill. In going through this Bill, I notice that there are a number of significant amendments and I would like to go through a few of them.

For instance, in the definition of "educational institution", I note the significant amendment broadening the definition of "educational institution" thereby putting it in very clear terms what are educational institutions and what are not. This is very good work by the Committee.

I also notice that there are amendments regarding performance of works in hotels and public places. For instance, showing of in-house movies in hotels are required to pay royalties. That is in the spirit of the copyright law. There is also amendment limiting the liabilities of the owners of hotels as regards the performance of work by performers on the premises. Also, there are amendments on performance of work in religious gatherings. All this, I believe, would make the implementation and the performance of work much easier and will make this Bill a much better piece of legislation.

I notice that there is also another amendment on groundless threat which would provide a remedy to help aggrieved parties who are under unnecessary threat of action brought by copyright owners.

There are also two amendments on computers. One amendment is clause 39 (3) which addresses the issue I first brought up in the Second Reading on local area network. Although the Minister in the Committee had said that this clause made it clear that reproduction of software on the land is not an infringement, but the layman's reading of this clause and the way I understand it is such that whether that is so or not would be subject to interpretations. Perhaps the Minister can elaborate.

There is another amendment on the computer storage of copyright work which says that the adaptation of work in a material form or through the reproduction of any work or an adaptation of a work in material form should include references to the storage of that work or adaptation in a computer. Rightly so, this amendment would address the progressing technologies in the sense that nowadays there are devices on the market that would convert printed form of work and other related form of work into computer readable and storable forms.

Since I am on the topic of computers, perhaps let me address the comment by the Member for Queenstown. The Member has stated that the computer is a dumb piece of machine and without software it is of no good. It is no better than a typewriter. He is absolutely right. But he has perhaps missed out the most important point in a computer, in the sense that although it is very dumb it is also very flexible. Its flexibility is derived from the software that is part of this Bill's address. Let me give him an analogy. A computer is just like an automobile. One can buy an automobile but without a driver, or without learning to drive it, it is not going to get you anywhere. So just like buying a car, if you want to go from one place to another ---

Mr Jek Yeun Thong rose ---

Mr Deputy Speaker: Are you giving way, Dr Wang?

Dr Wang Kai Yuen: May I finish my speech first, and then the Member can interject me.

Mr Jek Yeun Thong resumed his seat.

Dr Wang Kai Yuen: It is just like a car. In order to get to your destination, you either learn to drive a car which is not an easy thing, especially in Singapore where it takes a lot of work to get your driving licence, or you pay to hire a driver. So both things demand a lot of work and practice. Similarly, in the use of computers, you can buy a computer. Now, you either write the software yourself, in other words, learn how to do it and write it yourself, or pay to get a piece of software. So I think the case of a copyright work in computer software stands on very firm ground and perhaps the Member should come to recognize that.

Coming back to the Bill, with the amendment that I have noticed, I would say that the Bill has been improved. It is now a piece of balanced work and with the item addressing technologies, let me borrow a term from technology, it is a state of the art piece of legislation incorporating current thinking on copyright law in both Australia and New Zealand. While it is a good piece of Bill in terms of provision, its impact will lie in its implementation. I would say that this piece of legislation, will affect the lives of every Singaporean when it is fully implemented. Perhaps I would request the Minister to do a thorough educational work on the Singaporean through a campaign of some sort because the full implementation of this Bill would put many small businesses out of business. Perhaps the Minister should be compassionate in its implementation and, where it is possible, provide a grace period to aid the transition of current businesses in the area, which will be affected, into new businesses.

Mr Jek Yeun Thong: Can I ask the Member a question? How does he square this analogy of a digital clock with a micro-computer? A digital clock, as I know it and as you know it too, Mr Deputy Speaker, comes with the software already worked into the chip, whereas the micro-computer has not got anything inside. You have to buy the software to get it running.

Dr Wang Kai Yuen: Can I have a chance to answer that? The Member addresses two components in digital technology that span the spectrum of different intelligence. A digital clock is a very dumb device. It does not even have a micro processor chip in it. It is not correct to say that a digital clock has a micro-processor. It does not. It is just a series of counters and display units with a crystal clock running in it.

Mr Jek Yeun Thong: What about small calculators? Would it be the same?

Dr Wang Kai Yuen: Of course, calculators would be at the middle of the spectrum ranging from digital clock all the way to micro-computers. While it is more simple, like the watch, the hardware is actually pre-programmed and it is not flexible. One cannot change it. Even if you buy a clock, I doubt you own the right to that particular software implanted and incorporated into the hardware of that clock. Whereas in computers, again it is a similar situation. It is dumb but it is flexible, as I have said earlier. Thank you.

Mr Jek Yeun Thong: Thank you.

Mr Chew Heng Ching: Sir, I think we have had enough of computer jargon. Shall we come back to something more layman? I just want to make two comments on the Bill.

The Select Committee has done a great job. The amended Bill has struck a balance between the competing needs of copyright owners and consumers. I mentioned in the debate during the Second Reading of the Bill that the Minister should consider granting a grace period of six months to a year for businessmen to adjust. I spoke on that in the context of our economic reces- sion half a year ago because in a recessionary period it is very difficult for businessmen to raise funds to invest in new or alternative activities. However, economic conditions have improved in the course of the last six months, and it appears that our economy is on its way to a gradual but yet uneven recovery. In the course of the last six months to a year, I believe large scale operators of pirated copyright material have also adjusted themselves. They have disposed of their stocks of pirated copyright materials. Many have changed trade. Some, quite logically, have become agents or distributors for legitimate copyright products. However, I still like to urge the Minister to consider granting a grace period whereby the small-time businessmen, especially the small-time shop operators in Housing Board estates, could be excused from prosecution, if possible, during this grace period. Many of these people are still ignorant of the details of the new copyright law and many of them are still loaded with stocks of pirated copyright material which are not easy to dispose of. What is more, I think the Bill as amended by the Select Committee has now made it easier for copyright owners to take legal action. Many of these small-time operators in Housing Board estates are not in a position to be able to pay hefty fines when prosecuted.

The second point which I have raised in the Second Reading concerns profiteering and inflation. My concern then was that profiteering by copyright owners may be possible because these people might take undue advantage of the new law. I am glad that the Select Committee has now amended the Bill to allow for parallel importations of legitimate reproductions of copyright material. But we should not rest on our laurels. While this will provide competition and keep prices down, there is nothing to prevent copyright owners and parallel importers from ganging up to profiteer. I therefore suggest that the Government Anti-Profiteering and Inflation Committee together with CASE monitor closely developments in this area.

Finally, I think the new law is a very complex one. It took the Government some five years to draft it and the Select Committee some six months to review it. The implementation of the new law is indeed a great leap forward for the country. But copyright laws are never uniform. They vary from country to country. The Law Ministry should pay particular attention to its implementation and amend the law as and when appropriate.

Prof. Jayakumar: Mr Deputy Speaker, Sir, I wish to thank Members who spoke. I would say all the speakers in their comments have not raised any contentious issues and have indicated that they are in favour generally with the Bill as amended by the Select Committee. So my response need not be too lengthy. I will just make a few points.

First of all, I should say something about the reason or reasons for the Bill. In the Second Reading speech that I made in May, I was candid enough to mention that the Bill would also remove a significant source of friction with our major trading partners, especially the United States. But it would be wrong if Members of the House felt that the only justification for this Bill is to take care of this concern with our major trading partners. As with all legislation, so too the copyright legislation must find its justification in our national interest. So the question is, does the new Copyright Bill serve our national interest? I would like to emphasize that it does, because with the passage of this Bill conditions are created which are advantageous for the development of our publishing industry, for the growth of our computer software industry, and for the development of Singapore as an information centre. With the passage of this Bill, one can expect investors would have greater incentives to come to Singapore than would have been the case if they felt that our copyright legislation would jeopardize their interests. And, of course, the other point which I have mentioned is the removal of the source of friction with our major trading partners. That is the context in which we must view the Copyright Bill - that it aids and serves our national interest in the long run on many fronts.

If I may then turn to some of the specific points and requests for clarification. The Member for Chong Boon has made a constructive point about assistance or information and advice being given to some of the businesses who may be particularly adversely affected by the coming into operation of this law. My Ministry will take note of his point and liaise with the other departments to see what can be done to minimize the hardships and to give the necessary advice.

The Member for Queenstown in his own inimitable way has found the Copyright Bill to be a useful platform to talk about a wide variety of things which have got nothing to do with copyright; from Aids virus to gold fish, to clocks whether they are digital or grandfather clocks. Well, he has to make his point. But in case anybody feels that the Copyright Bill has got anything to do with digital clocks or Aids virus, let me assure him that it has got nothing to do with any of these. When he raised the general question as to whether the copyright legislation is going to hinder the bright Singaporeans from engaging in reverse engineering - "reverse engineering" not in its derogatory sense - I would say that the answer given by the Member for Potong Pasir is correct, that this has got nothing to do with that and it does not impede and will not hinder such development in Singapore because a different branch of law, particularly the patent law, governs the subject matter which he is referring to. He also asked what happens to the businesses which have invested thousands of dollars. I think the point made by the Member for Chong Boon is probably a correct approach to be taken in those cases.

The Member for Fengshan expressed concern with the presumption which is rebuttable in clause 136(7). He particularly was concerned with instances where 40 students in a lecture or smaller tutorial groups or choral groups or religious groups had more than five copies which are infringing copies. The answer to that is that the example that he gave about 10 students or 40 students, choral groups, would, from what he said, be clearly examples where they would have no problem in rebutting the presumption because they did not have it for sale. And if they were harassed or badgered, then I would suggest that they utilize the new section 200 which talks about groundless threats of legal proceedings.

He asked me to consider the prosecution policy. Of course, it will not be possible for me to indicate for all cases what the prosecution policy will be. But for all other offences, I am sure the authorities involved in investigation and putting up the papers will take into account the circumstances of each case, which means taking into account the circumstances of the offender, the offence, whether it is the first time, whether he had previous records, the volume involved and the extenuating circumstances, if any. All the circumstances will be taken into account and this will vary from case to case.

The Member for Bukit Timah, as well as the Member for Kaki Bukit, asked whether a specific grace period can be given. The answer to that really is that a grace period of not six months, but of more than two years, has in fact been given because the fact that this Bill was going to be enacted, its basic thrust, the essential provisions and objectives were publicized more than two years ago and the Second Reading was taken in the early part of 1986. The Select Committee took nearly six months to arrive at its conclusion. So in a sense all concerned with the trade and business have been put on notice and we can say that they are familiar with the provisions and, as I said, the various factors which I outlined will be taken into account as far as the prosecution is concerned.

Mr Deputy Speaker, Sir, I believe I have touched on the main points raised by hon. Members.

Question put, and agreed to.

Bill accordingly read a Third time and passed.