COPYRIGHT (AMENDMENT) BILL

Order for Second Reading read. 1.45 pm

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Before going into the provisions which are fairly complicated and technical in some respects, let me state at the outset that the protection and enforcement of intellectual property rights, including copyright, will become increasingly important as the Singapore economy matures. With advances in information technology, the global economy is rapidly moving from an industrial-based to a knowledge-based society. Intellectual capital, not merely physical assets or financial capital, will be the key factor.

As Singapore responds to this, developing a strong and effective system for protecting intellectual property rights becomes more important. Where a company's value is based less on its factories, plant and equipment but more on ideas and technical innovations, effective protection of its intellectual property will become increasingly central to its strategic plans and operations.

To ensure that Singapore stays ahead of the competition for high-value, knowledge-intensive industries, a good system of protection for intellectual property rights is not only desirable but in fact necessary. Knowledge-based industries will be attracted to invest in Singapore if they are confident that their intellectual property will be given sufficient protection here.

A good IPR infrastructure is also important to the success of our own home-grown knowledge-based industries. We have to bear in mind that increasingly it will be our inventors who will want patent protection and our artists, writers, etc, who will want copyright protection.

According to an independent survey by PERC (Political & Economic Risk Consultancy) in October last year, Singapore has the best intellectual property rights protection in Asia. The Government, however, recognises that technological advances and changing circumstances continually challenge us to strengthen and improve our IPR regime, and we are committed to doing so.

Sir, this Bill will amend the Copyright Act to improve the level of protection for copyright in Singapore and to implement Singapore's obligations under the World Trade Organisation's Agreement on Trade-Related Aspects of Intellectual Property or what is known as the TRIPS Agreement.

Under TRIPS, all WTO members, except the least developed countries, shall establish common standards of protection, remedies and enforcement for all areas of intellectual property rights by the end of next year. Singapore has, however, committed itself in APEC to bring the time frame for implementation forward to the end of this year, one year ahead of schedule.

A Government inter-Ministry committee has been reviewing our legislation on intellectual property rights to give effect to our obligations under TRIPS. Work on patents was completed first and a new Patents Act has been in effect since the beginning of 1996.

This amending Bill and the related Medicines (Amendment) Bill are the result of the review of copyright and the protection of test data which was completed at the end of last year and also reflect the desire to further enhance copyright protection. Work on other legislation in trade marks, industrial designs and integrated circuits is also under way.

Sir, in this Bill, we have also taken the opportunity to make changes, firstly, to enable us to accede to the 1971 Berne Convention for the Protection of Literary and Artistic Works; and, secondly, to enhance the enforcement mechanism under the Act.

TRIPS Agreement Amendments

Sir, let me first deal with the provisions relating to the TRIPS Agreement. These can be broadly classified as changes which relate to:

(a) rental rights;

(b) ephemeral copies of recordings and works;

(c) performers' rights

(d) remedies; and

(e) border enforcement.

To take up rental rights, the TRIPS Agreement requires that in the case of computer programmes and sound recordings, a copyright owner's rights shall include the right to rent the programmes and recordings. This is reflected in clauses 3 and 4 of the Bill which introduce a new section 25A and amend section 26 of the existing Act, as well as clause 17 which repeals and re-enacts section 82.

Next, as for ephemeral copies of recordings and works, the defences of reproducing literary, dramatic, musical or artistic works or sound recording for the purposes of broadcasting have been narrowed by the introduction of restrictions so that a broadcasting organisation may only keep copies made for the purpose of its broadcast, in general, for a period of six months. This is achieved by clauses 7, 15 and 19 which amend sections 43, 68 and 107 of the Act.

As for performers' rights, clause 35 of the Bill inserts a new Part XII of the Act which confers upon performers of life performances of drama, musical and literary works, dances, etc, new rights in relation to these live performances. These include the right to prevent unauthorised direct sound recordings, the reproduction of such recordings, live broadcasts and communication to the public.

The remedies for infringement of copyright set out in the existing Act are generally comprehensive. But the implementation of TRIPS has required us to expand them in one area. Under clause 22, new sections 120 and 120A are introduced pursuant to which the Court may order, upon an application by a copyright owner, that infringing copies of works and devices used to make infringing copies be delivered up and destroyed or forfeited to the owner.

Another significant amendment relates to border enforcement measures to prevent infringing intellectual property materials from entering Singapore. Clause 25 of the Bill gives effect to our obligation to put in place a border enforcement system by introducing new sections 140A through 140R on border enforcement measures.

Section 140B(1) enables a copyright owner who suspects that any shipment of pirated goods is coming to Singapore to notify the Director-General of the Customs and Excise Department. Subject to certain safeguards, the Department may seize the goods when they enter Singapore.

Implementation of provisions relating to the protection of test data under the TRIPS Agreement will also entail amendments to two other Acts, namely, the Medicines Act, which I will take later, and the Control of Plants Act, the amendments to which will be tabled in this House shortly. The Berne Convention Amendments

Let me now turn to the amendments which are related to the Berne Convention. This Convention predates the TRIPS Agreement. Many of its provisions in fact are covered by the TRIPS Agreement, and Singapore is not presently a party to the Berne Convention but we intend to accede to it once this amending Bill has come into force.

Acceding to that Convention will require us to permit libraries to allow the copying of works only if they are satisfied that these works cannot be obtained within a reasonable time at ordinary commercial prices. This is provided for in clause 9 of the Bill which repeals and substitutes section 45(5) of the Act.

Other Amendments to the Scope of Copyright and Defences

If I may quickly touch on other amendments on the scope of the copyright as well as defences, first, the deletion by clause 5 of section 35(5) of the Act will bring us in line with the United States, the United Kingdom, other European Union countries, Hong Kong and Australia, which do not bar the use of copyright materials for commercial research.

Secondly, various new defences are to be introduced where the copying of copyright materials is:

(a) to assist the intellectually handicapped;

(b) for examination purposes;

(c) carried out by educational institutions by non-reprographic materials; or

(d) for a course of instruction in the making of films and soundtracks.

All these changes are effected by clauses 10 to 13, 20 and 21 which insert new sections 50A, 52A, 54A, 115A and 115B and also amend section 116.

Thirdly, clause 6 introduces various amendments to section 39 which lift the restriction on the making of back-up copies of a computer programme. This change brings us in line with the position in the United Kingdom and reflects in fact current industry practice, which is not to impose such a prohibition.

Fourthly, section 74 of the Act, which deals with the overlap in protection under industrial design and copyright laws is amended by clause 16. The relevant period of protection stated in that section is increased from the present 15 years to 25 years, which is in line with the increase in the maximum term of protection for a registered design under the UK Registered Designs Act to 25 years.

Changes to the Enforcement Provisions

If I may touch on the provisions relating to enforcement, the main amendments are:

(a) Clause 23 which repeals and substitutes section 134 so that in the case of proceedings for the enforcement of copyright, there is now a rebuttable presumption that what is stated on the label of a sound recording is sufficient evidence of the facts stated regarding ownership of the copyright in the recording.

(b) Clause 24(e) amends section 136(4) to widen the offence of possession of equipment to make pirated sound recordings or audio-visual productions to include the possession of equipment designed to make pirated copies of all works; and

(c) Clause 24(g) deletes and substitutes section 136(9) and introduces new sub-paragraphs (10) to (12) to regulate the seizure of articles and documents pursuant to a search warrant. In the existing Act, the execution of a search warrant is limited to only the pirated items themselves and the implements used for piracy. The new section 136(9) will extend the scope of search warrants issued under the Act to cover all articles and documents which are evidence of copyright offences. This will enable a more effective investigation and prosecution of copyright offences.

Let me point out that some of these changes are the result of feedback received from various intellectual property bodies representing copyright owners.

These changes, of course, are not the last word on copyright amendments or copyright enforcement. The Government remains committed to considering and exploring further avenues to deal effectively with copyright piracy in cooperation with copyright owners.

I should also say that the honourable Chief Justice in his judgment in the Summit case made various observations, amongst other things, on the possible need for safeguards where search warrants are obtained at the initiative of copyright owners.

His observations are currently being studied. They have an impact, not just on the Copyright Act but also on other legislation and therefore any necessary amendments will be taken up subsequently in the context of a broader review, among others, of legislation like the Criminal Procedure Code.

Sir, I beg to move.

Question proposed.

Assoc. Prof. Chin Tet Yung (Sembawang): Mr Speaker, Sir, intellectual property rights now play a major role in international trade. Copyright is an important component of many of the world's major industries: publishing, music, films, databases, broadcasting, telecommunications, computers and the media. Singapore must be seen to have "state-of-the-art" copyright laws, to help encourage such industries to invest, or continue to invest, in Singapore.

The Copyright Act 1988 modernised Singapore's copyright law to deal, amongst other matters, with the evils of piracy and counterfeiting: of records, films, books and music. Rights were strengthened and methods of enforcement were improved. The 1988 Act was widely admired and held up as an example of what new copyright laws should contain.

Since then, much has happened. The economic importance of copyright has become even more pronounced; in spite of some effective action being taken to deal with piracy, it still remains a problem; technological developments which are transforming our way of life - the global information society, Internet, multimedia, are throwing further strains on the copyright system, and the problems which they give rise to have to be addressed.

I start with TRIPS (Trade Related Aspects of Intellectual Property). It is stated that one of the reasons for the introduction of this Bill is the need to comply with the TRIPS Agreement. Singapore, as a member of the World Trade Organisation (WTO) with the status of an "advanced developing country", has to comply with the TRIPS Agreement by the year 2000.

TRIPS, of course, deals with all areas of intellectual property. There is a need to amend or introduce new intellectual property legislation in other areas, eg, trade marks, industrial designs, integrated circuits, disclosure of confidential information, and so on. Can any information be provided by the Minister as to when all these other measures are going to be introduced and whether they will be enacted in time?

The protection of performers has traditionally been weak. Their rights have often been severely limited as other rightholders have tended to oppose the strengthening of performers' rights, both because they reduce their own share of royalties and also because of the practical difficulties which could arise if so many people involved in productions have rights to them. Successful performers with strong bargaining power can sometimes satisfactorily safeguard their own interests, at least, by contract. Lesser performers have little negotiating strength.

TRIPS actually does not confer strong rights on performers. Neither does Singapore in the current Bill. But it must be noted that today the situation is changing. Both from a cultural and an economic point of view, recognition of rights of performers is developing, eg. the European Directive on Rental and Related Rights confers much stronger rights on performers, seeking to equate them with owners of authors' works; and the WIPO Performance and Phonograms Treaty of 1996 also provides internationally strong rights for performers (certainly for phonograms, but not yet for audio-visual works).

It could be argued that Singapore should go beyond that, and to show its concern for the encouragement of culture and the arts, it should provide similar stronger rights.

Further, the Singapore Bill does not address some of the practical issues arising from the conferment of such rights. For example, the relationship between performers, producers of films and broadcasters. Should there, for example, be presumptions for the purpose of easier use and exploitation of works, that such rights are transferred in the absence of agreement to the contrary; in which event, should performers be guaranteed some form of reasonable remuneration? These matters have all been addressed in Europe. I hope that they can be addressed in Singapore as well.

In today's information society, the compilation of data and material, especially for use in computers and networks, has taken on exponential proportions. Arguably, the protection of compilations under Singapore copyright law (as was the case in the UK until the implementation of the European Database Directive) does protect data and material itself. It is not clear whether this present state of the law is consistent with TRIPS. It seems that there is a case for incorporating Article 10.2 into Singapore's legislation so that a Singapore court can ensure in an appropriate case that more general TRIPS' principle prevails. The Article states, and I quote:

`Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself shall be without prejudice to any copyright subsisting in the data or material itself.'

Producers of databases are particularly interested in this area, and there have been many developments in recent times to try to produce laws which give appropriate protection to databases. For example, a new European Database Directive has recently been implemented throughout Europe, whereby in addition to the fairly limited copyright protection for some databases, a new sui generis right has been created. A proposal for an international Database Treaty was made in 1996, and the matter is still under discussion although it is proving quite controversial.

I should like to ask the Minister to consider what is Singapore's approach to such databases and whether it would be appropriate to introduce a new sui generis right similar to the European model.

I turn to the remedies and enforcement. One of the most important features of TRIPS is the detailed code dealing with the enforcement of intellectual property rights.

Although at one time, Singapore's enforcement laws were thought to be strong, and Singapore has taken action to create additional enforcement machinery, rightholders' associations (eg, the software manufacturers) still maintain that more should be done by the Government and its agencies to ensure that enforcement receives a higher profile.

Overseas, there is also a similar perception that more needs to be done in Singapore to show that the Government is applying time and resources to these matters. Steps must be taken to ensure that, with appropriate safeguards, civil and criminal raids to obtain evidence are available to assist the legal process. Without questioning the merits of the case, the Summit decision may have given the wrong signals to those engaged in piracy and counterfeiting, and it is to be hoped that the measures in the Bill will be sufficient to correct that perception.

It is very important to ensure that there is a fair balance in any Copyright Bill between the interests of holders of rights in "cutting edge" software and the interests of competitors who want to design and market non-infringing competing programmes which interface or are inter-operable with the basic programmes.

The Court of Appeal's decision in Creative Technology v. Aztech established that currently Singapore's copyright law does not permit most kinds of reverse engineering. Companies cannot decompile programmes to establish how they were put together and armed with that knowledge to develop new inter-operable programmes. Whether competitors should be able to reverse engineer and, if so, to what extent, is a very difficult matter to resolve. It seems clear, however, that most countries in the world are trying to draw a line between those two differing computer industry groups so that those who own the copyright in the leading programmes can maintain their strong copyright protection over their software, but that in certain circumstances others may decompile because there is a public interest in doing so.

In the United States, use is made of the "fair use" defence, whereby courts are required to weigh up, on the facts of every case, whether the defendants could justify their activities. In Singapore, with the current amendment to section 35(5), I am pleased to see that the Copyright Bill brings the law of Singapore very close to that of the United States. This is especially welcome and should receive warm support from the industry.

Finally, may I just say that the TRIPS Agreement was drafted in the early 1990s, the full impact of the information superhighways was not yet fully appreciated. Accordingly, little was done in TRIPS to ensure that the copyright law deals with many of the new problems to which they give rise to.

This is what the WIPO Copyright Treaty of December 1996 seeks to do. It is a Treaty which sets out new rights for authors and others to ensure that they can control the copyright interests of works winging their way around the world in digital form one way or the other. There are also measures designed to protect those who are seeking to use technological means to dabble with anti-copying devices. For example, selling unlawful decoders, or interfering with copyright management information. These are matters of the utmost importance. The European Union has already introduced proposals to implement this particular Treaty. I hope that the Minister will study such measures and to introduce them in due course in Singapore.

Sir, I support the Bill.

Prof. Jayakumar: Mr Speaker, Sir, I wish to thank Assoc. Prof. Chin Tet Yung for his useful observations.

I would like to take up some of the points that he mentioned. He has asked about the time-table for TRIPS. I have pointed out that the work on implementing legislation in other areas, such as trade marks, industrial designs, integrated circuits, etc. is actually in progress. We have committed ourselves to bring our legislation in conformity with TRIPS by the end of this year, which is actually a year ahead of schedule.

As for performers' protection, the stronger regime for performers which he has in mind is actually pursuant to other treaties, such as the 1996 WIPO Performance and Phonograms Treaty which came into effect after TRIPS. Let me assure him that the need to extend these additional rights will also be reviewed and, if necessary, changes will be made to the Act at the appropriate time.

I have noted what he said about databases and compilations and the need to comply with Article 10.2 of TRIPS. But my understanding is that databases and compilations as of now already enjoy protection under the existing Act. I would refer him to the definition of "literary work" in the existing legislation of the Copyright Act. I believe our Act is therefore in compliance with Article 10.2 of TRIPS. After TRIPS, he is right that there were proposals made by certain member states of the World Intellectual Property Organisation to extend protection for databases and compilations under a special regime or what he referred to as sui generis regime. That was because of rapid developments in information technology. The proposals for that, I believe, were tabled in the 1996 WIPO Diplomatic Conference. But these proposals are still under discussion and therefore the relevant Government bodies will monitor the developments and decide how we should act on these trends.

I have noted what he said about remedies and enforcement and especially his concern that the Summit case may have given the wrong signals to those engaged in piracy and counterfeiting. Let me therefore take this opportunity to reiterate that the Government's policy is not to condone commission of criminal offences. Because tackling copyright piracy requires a comprehensive approach which involves the enactment of good laws, which we are attempting to do in this exercise, enforcement of stiff penalties and cooperation of the industry as well as constant review of the entire gamut of laws and enforcement. In the case of enforcement, the Intellectual Property Rights Warrant Unit set up under the CID in 1995, in fact, conducted over 500 IPR raids in 1997 and on copyright alone, there was an increase of 104% of raids compared to 1996. In terms of the number of fiats issued authorising prosecution by copyright owners, this went up from 64 in 1996 to 218 in 1997, more than 240% increase. Only last month, a 5�-hour raid on five retail outlets in Sim Lim Square was conducted. Several suspects were arrested with more than 3,700 CD-ROMs containing pirated business and games software and 270 VCDs containing pirated films were seized.

Our courts also have consistently meted out fairly stiff and long term imprisonment for intellectual property offences. I think he would have read this morning, for example, that a proprietor of a shop at Sim Lim Square was sentenced to two years' imprisonment after being caught repeatedly for selling pirated CD-ROMs. I hope the message will be loud and clear that we are not soft on copyright piracy. We are, however, mindful of the need to respond effectively to continually changing circumstances, and we will do so. Of course, the public have to play their part also. Because the supplier of pirated goods exists only because there is a demand for the pirated goods. The public must therefore respect the rights of those who have put in efforts in creating computer software, artistic, musical, literary or other copyright works and refuse to buy pirated items.

Finally, he asked me about further amendments to copyright laws, and he is right. As I said in my speech, the amendments today will not necessarily be the last word on the subject. We have to evolve our copyright legislation as we take into account information changes. As for the 1996 WIPO treaty, it does introduce various new rights relating to advances in information technology, especially for activities in cyberspace which he referred to. Let me assure him that the Government is looking into these trends at the moment.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Prof. S. Jayakumar].

Bill considered in Committee; reported without amendment; read a Third time and passed.