A Singaporean's Guide to The New Copyright Act 2021

Imagine this.

You spent most of your life creating this piece of content. Let’s you are a writer of an influential investment book that becomes a best-seller.

But one fine day, someone comes along to republish the book, sell it for cheaper and make a killing.

This will be a reality if there is no copyright law in the land.

Thankfully in Singapore, we have the new Copyright Act 2021, which will take effect on 21 November 2021, replacing the existing Copyright Act 1987 (Cap. 63).

This was announced in a joint statement made by the Intellectual Property Office of Singapore (IPOS) and the Ministry of Law on Friday (19 November 2021).

If you are a content creator, consumer of content, marketer or simply like to share content on social media — you need to read on.

Here are five key changes in the Act which will affect the different segments of our copyright ecosystem you need to know.

TL;DR: What Singaporeans Need to Know About Singapore’s Copyright Act (2021)

• Singapore has a new Copyright Act (2021) which will take effect today (21 November 2021), replacing the existing Copyright Act 1987 (Cap. 63).
• ‘The changes implemented by the Act ensure that our copyright regime continues to provide an environment that benefits both creators and users. The Act introduces new rights and remedies to provide more recognition for creators to further incentivise the creation of works.’
• This includes changes like:
  • Content creators are now the default copyright owners (includes all types of commissioned content)
  • Creators and performers will have to be identified if their public works or performances are reproduced
  • Selling products and services that provide access to copyright-infringing content is now prohibited by law.

Singapore Copyright Act 2021

So you might be thinking about why was the Copyright Act was updated.

Well, according to the Factsheet on Copyright Act 2021 published by the IPOS (emphasis are mine):

The Act will update and enhance our copyright regime to take into account technological developments which have immensely impacted how copyright works are created, distributed, accessed, and used. It also seeks to future-proof our regime to cater for future technological developments.

The changes implemented by the Act ensure that our copyright regime continues to provide an environment that benefits both creators and users. The Act introduces new rights and remedies to provide more recognition for creators to further incentivise the creation of works.

It also creates new exceptions for users, allowing copyright works to remain reasonably available for the benefit of society.

All changes introduced through the Act will take effect once the Act comes into force on 21 November 2021, save for provisions on the collective management organisation regulatory framework, which we will continue to consult the public on.

In addition, the IPOS has stated that the Copyright Act protects the following types of content:

• Literary works (e.g. books, articles in journals or newspapers, lyrics in songs, source codes of computer programs)
• Dramatic works (e.g. scripts for films or drama (as applied), choreographic scripts for shows or dance routines); • musical works (e.g. melodies)
• Artistic works (e.g. paintings, sculptures, drawings, engravings, photographs, buildings or models of buildings, works of artistic craftsmanship such as designer furniture that is not mass produced)
• Published editions of literary, dramatic, musical, or artistic works (e.g. typographic arrangements of a published work); • sound recordings (e.g. podcasts, music, or audiobooks contained in a digital file)
• Films (e.g. movies or videos)
• Television and radio broadcasts (i.e. broadcasts by way of television or radio)
• Cable programmes(i.e. programmes (visual images and sound) included in a cable programme service sent by means of a telecommunication system)
• Performances (e.g. performances by musicians, singers, and comedians).

Keep that in mind as you read about the key changes to the Copyright Act.

1. Content Creators Are Now The Default Copyright Owners (Includes All Types of Commissioned Content)

From 21 November 2021, content creators will become the default copyright owners of all types of commissioned content like:

• Photographs
• Portraits
• Engravings
• Sound recordings and Films
• Poems
• Paintings
• Music compositions
• Etc.

However, there are a couple of exceptions.

The default position can be modified by contract. For example, the artist can sign a contract to transfer the copyright of the commissioned content to the party that commissioned it.

If you create content as an employee, the copyright for all types of commissioned content you create during your employment term for your employer is owned by your employer.

Not to mention that existing personal data protection, defamation, and criminal laws are still applicable.

Here is an example of this legislation given by the IPOS:

A company engaged a photographer for an event, to take photographs to be used in the company’s promotional and marketing material, including its website and corporate collaterals. The company’s representative and the photographer negotiated the fee and confirmed other details such as the duration of the event and the number of photographs to be provided to the company via email.

The photographer sent over a written quotation which was accepted by the company. There was no mention in the email or the terms and conditions of the quotation as to copyright ownership of the photographs. Under the new Copyright Act, the photographer will by default own the copyright to the photographs taken at the event.

While the company may use the photographs for the purposes for which they were commissioned, the photographer as the copyright owner may use the photographs for his own purposes, such as for his commercial portfolio. He may even licence or sell copies of the photographs to others.

However, if any of these photographs contain images of persons such that they will be considered personal data, he must observe the obligations as to the use of such personal data under the Personal Data Protection Act.

If the company had wanted to own the copyright in the photographs so that it may use them for any other purpose, then it should have negotiated with the photographer and amended the terms and conditions of the quotation to record this agreement in writing.

This may involve paying the photographer a higher fee for the copyright.

If the photographer agrees that the company will own the copyright to the photographs, the photographer would also have to negotiate for any use he intends to make of the photographs (e.g. to include them in his commercial portfolio).

This legislation also applies when you engage a photographer for your personal photography needs.

Let’s say you engaged a wedding photographer or videographer for your wedding or a portrait photographer to help you take photos for your LinkedIn.

Although the photographer is the default copyright owner, you still can share the photos for personal use.

2. Creators and Performers Will Have To Be Identified if Their Public Works or Performances Are Reproduced

The second key change to the Copyright Act 2021 involves the identification of creators and performers who display their works and performances in public.

If you are want to share or reproduce a piece of authorial work (e.g. dramatic, literary, musical or artistic work) or public performance (depends on work or performance) online or for your marketing collaterals; you will need to credit and identify the creator/performer in a manner that is ‘clear and reasonably prominent.’

Also, you will need to credit the creator/performer in the way they want to be credited.

For example, let’s say you wanted to share a video of a busker singing on the streets. You will have to ask the busker how they want to be identified in your video, whether with a stage name or their actual name.

Here is an example of this legislation given by the IPOS:

A person visited a blog and found a poem written by the blog owner. She found the poem interesting, so she copied and shared it on her social media account. She needs to properly identify the blog owner as the writer of the poem when doing so, e.g. in the caption of her social media post. If she does not, she will be liable for infringing the blog owner’s right to be identified.

Further, because the right to be identified is separate from copyright, she will also need to obtain permission from the blog owner to copy and share the poem if she is not able to rely on any permitted use to do so. A company commissioned a painting for its commemorative 20th-anniversary celebrations. It negotiated a contract with the painter so that the company would own the copyright to the painting. The contract did not contain any waiver of the painter’s right to be identified. The painter also did not consent to not be identified.

The company later reproduced the painting in its commemorative collaterals (such as brochures and pamphlets) and on its website but did not identify the painter. Even though the company has not infringed copyright (since it owns the copyright to the painting), it has infringed the painter’s right to be identified. The company should have identified the painter when it used the painting in those ways.

Alternatively, it should have negotiated with the painter to waive his right to be identified or obtained his consent to use the painting without identification.

However, there are a couple of exemptions according to the IPOS.

You will not have to identify the creator or performer:

• Where the author’s or performer’s identity is not known
• Where the author or performer:
  • Consents to not being identified (i.e. they agree, whether in writing or not, that they do not need to be identified)
  • Waives their right to be identified (i.e. they state in writing that they relinquish their right to be identified)
• When the work or performance is to be used for exempted purposes, such as:
  • Examinations
  • Artistic works in public places (only for works) incidental inclusion in films, television broadcast, or cable programmes (only for works)
  • Judicial proceedings
  • Industrially applied artistic works (only for works)
  • Fair use for the purpose of reporting news
  • Other prescribed circumstances
• When using exempted materials:
  • Computer programs
  • Works made in the course of employment and first owned by the employer
  • Works, where the Government is the first owner and the author, has not been identified.

If you do not wish to identify the creator/performer, you should always consult the creator to sign a waiver to waive away their right to be identified.

3. Selling Products And Services Provide Access to Copyright-Infringing Content is Now Prohibited by Law

In addition, copyright owners can now sue any individual or entity that consciously engages in any commercial dealings that involve copyright-infringing content through:

• Devices like television set-top boxes (also known as “white boxes” or “grey boxes”) or streaming software applications
• Services that have a limited (or no) commercially significant purpose or use besides facilitating access to copyright-infringing works.

In other words, you are prohibited by law from selling, trading, distributing and offering these copyright infringing products and services in exchange for payment.

Here is an example of this legislation given by the IPOS:

A vendor sells a range of electronic devices, including the following:

• Device A, which provides access to the Internet (including websites that host illicit or “pirated” content, such as movies or music), contains video games, and may be used to store data; and
• Device B, which can connect to a smart television, contains pre-loaded applications that provide access to illicit or “pirated” content (such as movies or music) hosted on the Internet, contains a calculator application, functions as a clock, and allows the users to download additional applications.

The vendor may be liable for copyright infringement for selling Device B if it can be proven that the device has no commercially significant purpose other than to facilitate access to infringing works.

If the vendor does not sell Device B, but instead provides it as a “free gift” with the purchase of Device A, the vendor may still be liable for copyright infringement because it continues to deal commercially with Device B.

If the vendor stops carrying Device B entirely, and focuses on selling only Device A, the vendor may still be liable for copyright infringement if, in exchange for payment, it offers a service to install a software application on Device A that enables the user to directly access illicit or “pirated” content on the Internet.

Even if the vendor does not personally install the application, it may still be liable for offering a prohibited service by providing information on how such content can be accessed.

Other Copyright Act 2021 Changes

• Sound recording companies now have the right to receive equitable remuneration when their sound recordings are broadcasted or publicly performed.
• The ‘fair use’ exception has been strengthened.
• Unpublished works will no longer enjoy perpetual copyright protection.
• New exceptions for:
  • Non-profit educational institutions to use free resources on the internet for educational purposes with proper citing
  • Use of works for computational data analysis.
• Changes to existing exceptions involving archives, galleries, libraries, museums, print-disabled users and official government registers.

If you want to learn more about these changes, you can refer to the Copyright Act 2021 factsheet here.