The Copyright (Amendment) Bill 2014 (“Bill”) was passed by Parliament on 8 July 2014. The Bill will be gazetted as an act before it comes into effect on a date to be published in the Government Gazette. The amendments to the Copyright Act (“Act”) set out in the Bill seek to:
- provide stronger measures for copyright owners to protect their copyright online by allowing them to seek court orders to block or disable access to a flagrantly infringing online location or website; and
- implement the Marrakesh Treaty to facilitate greater access to copyrighted works for persons with reading disabilities.
The amendments to the Act are likely to come into effect by the end of the third quarter of 2014 (3Q2014).
PROPOSED AMENDMENTS TO FIGHT ONLINE PIRACY
Current framework for the protection of copyright
Under the current framework of the Act, copyright owners can request that a network service provider (“NSP”) disable access to or remove material that infringes copyright from its network by issuing a “take-down” notice. However, it is not mandatory for NSPs to comply with a take-down notice.
If a NSP does not comply, the copyright owner will then need to commence legal proceedings against the NSP for copyright infringement. In these proceedings, the copyright owner bears the burden of establishing liability for copyright infringement on the part of the NSP. This, as well as the high costs and uncertainty involved in the proceedings, deters copyright owners from making use of the existing mechanism.
Application for a court order to block flagrantly infringing online locations or websites
The Bill introduces a new avenue for copyright owners or exclusive licensees of copyrighted material to apply directly to the High Court for an order directing NSPs to disable access to a “flagrantly infringing online location” (“blocking order”), without the need to first commence legal action to establish liability on the part of the NSPs for copyright infringement.
The two requirements for a blocking order are:
- the services of the NSP have been or are being used to access the website to be blocked, to commit or facilitate infringement of copyright in that material; and
- the website is a “flagrantly infringing online location”.
The following is a non-exhaustive list of factors set out in the Bill which the Court may consider in determining whether a particular website is a “flagrantly infringing online location”:
- whether the primary purpose of the online location is to commit or facilitate copyright infringement;
- whether the online location makes available or contains directories, indexes or categories of the means to commit or facilitate copyright infringement;
- whether the owner or operator of the online location demonstrates a disregard for copyright generally;
- whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
- whether the online location contains guides or instructions to circumvent measures, or any order of any court, that disables access to the online location on the ground of or related to copyright infringement; and
- the volume of traffic at or frequency of access to the online location.
The proposed new avenue applies only to the blocking of access to entire websites. For copyright owners or exclusive licensees who wish to block specific parts of a website, their recourse is under the existing measures under the Act.
Before applying for a blocking order, a copyright owner or exclusive licensee must send a notice to the:
- NSP; and
- website owner.
This is to allow the website owner to voluntarily cease use of the website, and to provide the NSP with the opportunity to explain any difficulties or adverse effects that it may face in complying with the blocking order, if such an order is made.
Although a website owner must be notified of the application for a blocking order, the High Court may dispense with such notification if it is satisfied that the plaintiff has, despite reasonable efforts, been unable to:
- determine the identity or the address of the owner of the website; or
- send the notices to the owner of the website.
The website owner, like the NSP, will also have the right to be heard in the application, and the right to appeal against the blocking order.
Variation and revocation of a court order
The plaintiff, the NSP and the website owner, as parties to the blocking order, may apply to the High Court to vary or revoke such an order.
The High Court may vary a blocking order made if it is satisfied that there has been a material change in the circumstances, for example, when the domain name of the website has been changed.
Further, the High Court may revoke an order if it is satisfied that:
- upon further evidence, the order ought not to have been made;
- the online location has ceased to be a flagrantly infringing online location; or
- it is appropriate in the circumstances to revoke the order.
THE MARRAKESH TREATY AND INCREASING ACCESS TO COPYRIGHTED MATERIAL FOR PERSONS WITH DISABILITIES
The Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”) was adopted by Member States of the World Intellectual Property Organization (WIPO) in June 2013. Singapore will be signing and ratifying the Marrakesh Treaty by the end of 2014, and amendments to the Act are being made to ensure that Singapore is able to meet its obligations under the Marrakesh Treaty.
The amendments allow more groups of persons with reading disabilities, as well as institutions acting on their behalf, to make copies of the copyright-protected material in formats accessible to these persons, without the need for permission from the copyright owner. The amendments also permit the conversion of a copyrighted material into any format that is accessible to persons with reading disabilities.
Further, three more categories of works, namely artistic works, sound recordings and sound broadcasts, will be added to the existing categories of literary and dramatic works that can be converted into formats that are friendly to persons with disabilities.
Finally, the amendments also permit institutions assisting persons with reading disabilities, as well as educational institutions, to not only reproduce, but also distribute, import and make for export such accessible format copies.
COMMENTS / CONCLUSION
The new judicial avenue to apply for blocking orders from the Court is expected to assist copyright owners and exclusive licensees by providing greater ease and certainty in their fight against online piracy.
The proposed new framework also includes safeguards to balance the interests of other affected parties, by providing that notice is to be given to the website owner and the NSP, and also by providing for the right to be heard in the application, to appeal, and to vary or revoke a blocking order.
However, only copyright owners or exclusive licensees of copyright may apply directly to the High Court for the blocking order. Non-exclusive licensees or sub-licensees of copyright are not entitled to make the application and will have to rely on copyright owners or exclusive licensees to bring an action to Court on their behalf. As such, it remains to be seen whether the proposed amendments to the Act are sufficient to protect the interests of non-exclusive licensees or sub- licensees of copyrighted material.
As for the proposed amendments to the Act that give effect to the Marrakesh Treaty, they will enable more persons with reading disabilities, and more institutions that assist such persons, to have access to copyrighted works, and should be welcomed.
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