A fundamental principle of copyright law is that ideas cannot be protected, but original expressions of an idea may be.
Misconception 1 – Ideas can be protected by copyright law
A fundamental principle of copyright law is that ideas cannot be protected, but original expressions of an idea may be. For example, the idea of extraterrestrials visiting Earth has long fascinated many of us. This one idea has given birth to creative content featuring aliens in a diversity of forms, from the benign E.T. to the oppressed “prawns” in District 9. None of their creators can claim copyright over the idea of extraterrestrials descending on Earth nor stop others from producing content featuring this core idea. However, the characterisations of particular aliens can be original expressions of the core idea, and elements like their visual appearance or their catchphrases (“E.T. phone home”) may be subject to copyright.
Misconception 2 – I can sue for copyright infringement as long as the other work is similar to mine
In a world with billions of innovative minds and a growing homogenisation of cultures, there may be multiple TV shows, novels, songs, and so on which feature strikingly similar elements. How are they able to co-exist?
The hedonistic character Ted may have shocked some in 2012 by subverting the innocent children’s teddy bear, but arguably more surprising is the fact that a similarly profane teddy named Charlie had already been circulating on Youtube since 2009.
Owners of the copyright in the character Charlie brought a claim against Ted’s creators, arguing that the visual portrayal of Ted was copied from Charlie (Bengal Mangle Productions LLC v Seth MacFarlane et al.). However, Ted’s creators had evidence showing that the character Ted was independently created and not copied from Charlie. In light of this evidence, the lawsuit from Charlie’s owners was withdrawn.
In Singapore, claims of infringing use of a copyrighted work can also be resisted by showing that despite similarities in certain features, the later work was independently created. Relevant evidence can include internal company memos or research. In some cases, it may even be possible to argue that both the claimant and the defendant’s work were derived from another non-copyrighted work, such as an old work in which copyright has expired.
Misconception 3 – The creator of the work is always the owner of the copyright
In straightforward cases, the person who creates an original piece of work is the copyright owner. However, there are a few special situations which should be observed:
Works created in the course of employment
If a literary, dramatic or artistic work is created by an employee in the course of employment, the employer automatically owns all copyright in the employee’s work. However, the distinction between an employee and an independent contractor is not always clear, for example, when it comes to interns. From an employer’s perspective, contractual safeguards should be put in place to ensure that rights to any intellectual property are to be assigned to the employer.
Works created while employed as a journalist
Singapore’s current copyright regime also makes an exception for persons who contribute original works in the course of employment with a newspaper or magazine. The employer will be the automatic owner of rights to publication or reproduction of the work in the newspaper or magazine. This means the author cannot publish the work in another newspaper or magazine, but can publish the work elsewhere, for example on their website, or adapt an article into a comic. However, this position remains subject to any contracts providing for a different arrangement.
If a person (“author”) is commissioned by another party (“commissioning party”) to create a piece of work, then the author will automatically be the owner of the copyright in the work. Again, this is subject to any clauses buried in their contracts with the commissioning party, which may have the effect of assigning their ownership to the commissioning party.
For portraits, photographs, and engravings in particular, the commissioning party and not the author will automatically own the copyright in the works. This means if you are commissioned to take photographs at an event, the commissioning party will automatically own the copyright in the photographs, preventing you from putting up copies on your website or sending copies to potential customers who may want to review your work. However, the Ministry of Law has indicated that this may change (pending possible amendment to the Copyright Act) so that authors will be given first ownership.
Misconception 4 – You need to register your copyright in Singapore
There is no need to register your copyright in Singapore. Unlike trademarks, patents, and designs, copyright automatically subsists in an original work. This means that upon creation, the owner of the work immediately has rights to publish the work, make copies, and so on.
Moreover, the copyright owner will have the right to challenge any third parties who infringe on his rights. These rights do not need to be certified or registered by any office or Court of Singapore. However, the scope of the rights which a copyright owner claims can always be challenged by third parties.
This position may change in the future as the Ministry of Law is assessing the potential of establishing a Copyright Registry, and how much information the applicant must submit about their work for the Registry’s records.
Misconception 5 – Only a legitimate owner of copyright in a work can use the © sign
Most people are well acquainted with the © sign, especially when spellcheck gets in the way of placing brackets around a “c”. In practice, use of the © sign shows that the user is claiming copyright – but does not automatically mean they are the true copyright owner or have any rights in the subject matter.
The fact that the © sign does not appear also does not mean the subject matter is not protected by copyright. As there is no copyright registry or any like body, there is no one is policing the use of the © sign!
Nonetheless, the use of the © sign puts third parties on notice that the user is claiming protection over the work under copyright law. While ignorance is not a defence to copyright infringement, it may affect the damages that the Court will order the infringing party to pay the claimant in a successful claim. The use of the © sign is therefore strategic, as infringers will then generally be stopped from arguing that they did not know the subject matter was copyrighted.