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LEGISLATIONCopyright (Amendment) Act 2014, An Act to Amend the Copyright Act (Chapter 63 of the 2006 Revised Edition), July 2014 [(1) The Singapore Paliament passed an anti-piracy amendment to the Copyright Act, which will enter into force at the end of August 2014, to allow right holders to apply directly to the courts for injunctions against Internet Service Providers to prevent users from accessing the so-called “pirate sites” without having to first establish ISPs’ liability for copyright infringement. The new bill provides copyright holders with an express lane to take down the content or block the hosting site within eight weeks, if the High Court signals a green light. (2) The so-called “pirated sites”, known in the proposal as “flagrantly infringing online location”, are to be assessed by the courts based on certain non-exhaustive factors, including (i) whether the online location’s primary purpose is to commit or facilitate copyright infringement, (ii) whether it makes available or contains directories, indexes or categories of the “means to commit copyright infringement”, (iii) whether the owner of the location “demonstrates a disregard for copyright”, (iv) whether the location has been disabled by court orders from other countries on grounds of copyright infringement, (v) whether the location contains guides or instructions on circumventing measures to disable access to the location, and (vi) the number of visitors to the online location. (3) The injunction is permanent, although site owners, ISPs or right holders can apply to the courts to overturn the injunction. Applicants to an existing injunction can more easily apply for another injunction or vary the original injunction in relation to the location that has assumed a different IP address or URL.] Personal Data Protection Act 2012, Act No. 26 of 2012, November 20, 2012 (An Act to govern the collection, use and disclosure of personal data by organisations, and to establish the Personal Data Protection Commission and Do Not Call Register and to provide for their administration, and for matters connected therewith, and to make related and consequential amendments to various other Acts. Among others, it sets out provisions to deal with the liability of “data intermediaries” in relation to their processing of personal data) [Singapore introduced its first comprehensive data protection legislation in the form of the Personal Data Protection Act in 2012 (“PDPA”). The PDPA subjects all Singapore organizations as “data organizations” to various data protection obligations regarding the collection, processing and use of personal data. Data intermediaries however only have to observed a qualified set of data protection obligations. "Data intermediaries” are defined in the PDPA as “an organisation which processes personal data on behalf of another organisation but does not include an employee of that other organization.” An organization that qualifies as a “data intermediary” only has to observe limited obligations regarding use of reasonable security arrangements to protect personal data from unauthorized access and similar risks (PDPA section 24) and the obligation to cease to retain personal data when it is reasonable to assume that the purpose for which the personal data was collected is no longer being served or when its retention is no longer necessary for legal or business purposes (PDPA section 25). No other data protection obligations are imposed on “data intermediaries”. For instance, if an individual directs his inquiry to a “data intermediary”, under the PDPA, the “data intermediary” has no obligation to respond to the individual’s request, for instance, to be notified of purpose of the data collection, use or disclosure (PDPA section 20), to be provided with information about the ways in which his personal data has been or may have been used or disclosed and access to his personal data (PDPA section 21) and to correct an error or omission in his personal data (PDPA section 22) as these obligations are only to be observed by the “data organisation”.] Electronic Transactions Act, Parliamentary Legislation, Chapter 88, Revised Edition 2011, Dec 31, 2011 (originally Jul 10, 1998) (An Act to provide for the security and use of electronic transactions, to implement the United Nations Convention on the Use of Electronic Communications in International Contracts adopted by the General Assembly of the United Nations on 23rd November 2005) [Section 26 in Part IV of the Electronic Transactions Act, which was modeled after Art 1 s 5 of the German Federal Law to Regulate Conditions for Information and Communication Services 1997, provides that a “network service provider” shall not be subject to any civil or criminal liability in respect of “third-party material” in the form of electronic records to which it “merely” “provides access." This exemption of liability is extended to cover liabilities in respect of data protection obligations with respect to third party material under the Personal Data Protection Act 2012. However this exemption does not extend to cover any obligations founded on contract, under a licensing or regulatory regime, laws or court orders to remove, block or deny access to material and copyright infringement. Of the key terms in this provision, only the terms ”third-party” (a person over whom the provider has no effective control) and “provides access” (the provision of the necessary technical means by which third-party material may be accessed and includes the automatic and temporary storage of the third-party material for the purpose of providing access) have been defined. Presumably, the term “network service provider” is to be given an expansive interpretation. To date, there have been no decided cases on this provision (previously section 10 of the Electronic Transactions Act 1998, Revised Edition 1998). But the breadth of this exemption is limited by the term “merely." As the Explanatory Statement to the 2010 Bill explains, “The protection under the clause will not apply if the provider does something more than merely providing access to the third-party material.” So the exemption from liability will apply to Internet Service Providers (“ISPs”), hosting and cloud storage providers who provide access and storage services. But the broad exemption will not extend beyond that. Thus network service providers that aggregate or process their users’ personal information, or process the personal information of other service providers would not be regarded as “merely providing access” and would have to observe their data processing obligations under the Personal Data Protection Act 2012.] Copyright Act, Parliamentary Legislation, Chapter 63, Revised Edition 2006, January 31, 2006 (originally Apr. 19, 1987) (An Act relating to copyright and matters related thereto) [In 1999, Singapore made its first amendments to the Copyright Act to introduce various safe harbor defenses for Internet intermediaries as network service providers. Arising from its obligations under the U.S. Singapore Free Trade Agreement,  Singapore further revised in 2004 the safe harbor defenses in the Copyright Act for network service providers. (1) Section 193A of the Copyright Act states that the safe harbor defenses are to apply to “network service providers”, which includes ISPs as intermediaries providing services and connections for data transmission or routing, as well as intermediaries who provide or operate facilities for online services or network access. It would seem that “network service providers” are broadly defined so that most Internet intermediaries would qualify for the safe harbor defenses. In the Singapore High Court decision in RecordTV Pte Ltd v. MediaCorp TV Singapore Pte Ltd, [2009] SGHC 287 (Sing. H.C.) (“RecordTV”), the Singapore High Court chose to interpret section 193A to apply only to “bona fide” network service providers.  The court did not explain what it meant by a “bona fide” network service provider, only that as RecordTV made copies of the rightholders’ programming, it was not considered one that is bona fide.  On appeal, the Court of Appeal, which reversed the High Court for holding RecordTV liable, did not discuss this judicial gloss placed on the safe harbor defense.  (2) The four safe harbor defenses mirror the same defenses in the United States Digital Millennium Copyright Act. Section 193B, modeled after 17 U.S.C. § 512(a), indemnifies an ISP (as a subclass of a “network service provider”) from monetary relief for any copyright infringement that occurs by reason of the transmission, routing, provision of connections or transient storage by the ISP of an electronic copy of the material. To qualify for this defense, the transmission must be initiated by a person (other than the ISP), the transmission must be carried out without any selection of the material, the ISP must not select the recipients of the material except by way of an automatic response, and the ISP must not make any substantive modifications to the material during its transmission. In RecordTV, the Internet intermediary sought to bring itself under this safe harbor defense. This was rightly rejected by the court, because the operations of RecordTV could hardly be characterized as an “automatic technical process” of an ISP, although it would have been easier for the court to dismiss this defense simply on the grounds that RecordTV is not an ISP. (3) Section 193C of the Singapore Copyright Act, modeled after 17 U.S.C. § 512(b), indemnifies a network service provider for making, through an automatic process, a cached copy of a work on its network from the originating network, in response to a user’s action, in order to facilitate efficient access to the material by its users. The conditions are that the network service provider will not make any substantive modifications to the content of the cached copy, and if it is furnished with a take-down notice, it is to expeditiously take reasonable steps to remove or disable access to the cached copy of the work on its network.  In addition, it has to satisfy other conditions that the Minister may prescribe, including conditions relating to access to the copy, the refreshing, reloading or updating of the cached copy and non-interference with any technology used by the originating network to obtain information about usage of the material.  (4) Section 193D of the Singapore Copyright Act, modeled after 17 U.S.C. § 512(c) and (d), indemnify a network service provider for providing hosting and referral services from monetary relief for any copyright infringement arising from its activities. To qualify for protection, a network service provider providing hosting services that involve storing an electronic copy of the infringing material on its work must not receive any direct financial benefit from the infringement, and has to designate a representative to receive the prescribed take-down notices.  Likewise, a network service provider providing referral or linking services must not receive any direct financial benefit from the infringement, and has to designate a representative to receive the prescribed take-down notices.  The hosting or referring network service provider will lose the indemnity if upon acquiring actual knowledge of such facts or circumstances “which would lead inevitably to the conclusion” of infringement, or is furnished with a prescribed take-down notice, it does not expeditiously take reasonable steps to remove or disable access to the infringing material.   (5) Notwithstanding the safe harbor conditions which a network service provider has to observe to qualify for indemnity, section 193A of the Copyright Act states that a network service provider is not obliged to monitor its service or affirmatively seeking facts to indicate infringing activity, or to gain access to, remove or disable access to any infringing material.  However, to qualify for the safe harbors, a network service provider has to adopt and reasonably implement a policy for termination of repeat offenders, and must accommodate and not interfere with standard technical measures for identification or protection of copyrighted material.]

BILLS AND LEGISLATIVE PROPOSALS Bill, Apr 7, 2014, Proposed Amendments to Revise the Copyright Act to empower the courts to make site blocking orders [The Singapore Ministry of Law is proposing legislative amendments to allow right holders to apply directly to the courts for injunctions against Internet Service Providers to prevent users from accessing the so-called “pirate sites” without having to first establish ISPs’ liability for copyright infringement. The so-called “pirated sites”, known in the proposal as “egregious online locations”, are to be assessed by the courts based on certain non-exhaustive factors, including (1) whether the online location’s primary purpose is to commit or facilitate copyright infringement, (2) whether it makes available or contains directories, indexes or categories of the “means to commit copyright infringement”, (3) whether the owner of the location “demonstrates a disregard for copyright”, (4) whether the location has been disabled by court orders from other countries on grounds of copyright infringement, (5) whether the location contains guides or instructions on circumventing measures to disable access to the location, and (6) the number of visitors to the online location. It is proposed that the injunction be permanent, although site owners, ISPs or right holders can apply to the courts to overturn the injunction. It is also proposed that applicants to an existing injunction can more easily apply for another injunction or vary the original injunction in relation to the location that has assumed a different IP address or URL.]

DECISIONS

Superior CourtsCourt of Appeal, Civil Action, RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd, [2011] 1 SLR 830; [2010] SGCA 43, December 1, 2010 [(1) The appellant/plaintiff, RecordTV, was the provider of a remote-store digital video recorder service, known as iDVR or Internet digital video recorder, which allowed its registered users to request the recording of the respondents/defendants' free-to-air broadcasts in Singapore, based on the scheduling information of the respondents' programming which the appellant has provided. The respondents' broadcasts were received by the appellant's roof-mounted antenna and routed to the appellant's recording computers. If a registered user requested a recording, the appellant's control software would instruct the system to record the said program. Once a recording was made and stored on the appellant's premises' computers, it was made available for viewing to the user who requested the recording on their computers or their TVs. At the end of 15 days after the date of recording, the recordings were deleted. (2) In relation to its recording system, the appellant's system underwent three configuration changes. In phase 1, the system eliminated the duplication of copies and made only 1 recording despite multiple registered users' requests for the same program to be recorded. In phase 2, the system would make multiple copies of recordings based on multiple user requests for the same programming, but would switch to a single copy being made if system resources were insufficient. In phase 3, the system was reconfigured so that individual copies of the same programming were made for each requesting registered user. The changes were ostensibly made in response to the judgment of the 2nd Circuit in the Cartoon Network LP v CSC Holdings (the Cablevision case). (For purposes of these proceedings, only the appellant's system in relation to phase 1 and phase 2 were in issue.) (3) The respondents' objected, contending that the use of iDVR infringed its copyright in its MediaCorp programming (broadcasts and films). When the defendant commenced groundless threats of infringement proceedings, the plaintiffs in turn counterclaimed for copyright infringement and sought injunctive relief. (4) The High Court allowed the respondents' claim against the appellant for copyright infringement. The appellant appealed.  (5) The Court of Appeal reversed the High Court. It found that it was the registered users requesting the recording of the shows using the appellant's iDVR service rather than the appellant who copied the respondents' programming.  (6) The court also held that the appellant did not communicate the recorded shows to the public – it was the registered users who requested the recording of a particular show and the registered users who did so did not constitute "the public" for purposes of ss 83 and 84 of the Copyright Act. (7) The court also held that there is no reason why the aggregate of private and individual communications made to each registered user should transform the nature of such communications into "public" communications. Each registered user could only access the particular show he had requested to be recorded, and not the entire library of recorded works made by the appellant.  (8) Finally, the court held that the appellant did not authorize the registered users to do any act comprised in the respondents' copyright in their programming. To determine if there is authorization liability, four authorization liability factors have to be considered and evaluated in their totality in the context of the factual matrix of each case: (a) whether the alleged authorizer had control over the means by which copyright infringement was committed and hence, a power to prevent such infringement, (b) the nature of the relationship (if any) between the alleged authorizer and the actual infringer, (c) whether the alleged authorizer took reasonable steps to prevent or avoid copyright infringement, and (d) whether the alleged authorizer had actual or constructive knowledge of the occurrence of copyright infringement or the likelihood of such infringement occurring. On the facts, (a) while the appellant did have the power to prevent potential infringement of the respondents' copyright in its programming by shutting down its iDVR service altogether, it was not necessary to take this drastic step as it had expressly stated in its terms of use that registered users could only use its service to record those shows which they could otherwise legally view and record, (b) while there was a commercial relationship between the appellant and its users, on the evidence, the appellant did not benefit commercially, although the users benefited socially, and there was nothing wrong if the appellant profited from providing its service, (c) the appellant streamed its recorded shows to the users, rather than allowing its users to download them, thereby preventing illegal distribution, and provided in its terms that the recording was only to be used for personal, private and domestic use and only for those shows which a registered user could otherwise legally view and record, meaning that only those registered users in Singapore who held valid TV licenses could use the appellant's iDVR to record the respondents' shows, and not those out of jurisdiction, and (d) given the precautions taken, in absence of express proof of knowledge, it was not right to attribute knowledge of improper usage to the appellant.  For all these reasons, the court held that the appellant was not liable for authorizing the doing of any act comprised in the respondents' copyright in its programming.  (9) The court did not have to deal with the defenses of safe harbor protection and fair use. High Court, Civil Action, Odex Pte. Ltd. v. Pacific Internet Ltd., [2008] SGHC 35, [2008] 3 SLR 18, March 22, 2001 [(1) Odex was a private company that provided Japanese anime programs to local television stations for broadcasting. It also distributed authorized copies of these programs to retailers for sale to the public. Odex alleged that with Internet piracy and the ease of obtaining DVD-quality movie files for free via P2P software, its sales of anime video titles had begun to drop significantly and that TV stations also bought fewer anime titles as they were allegedly losing viewership to illegal downloaders.  (2) To address this problem, Odex engaged the services of BayTSP.com Incorporated (BayTSP), an American company, to collect and track instances of unauthorized uploading and downloading of copies of Japanese anime video titles. Through BayTSP, Odex discovered that there had been more than 474,000 unique downloads over an 11-month period, based on searches conducted on only 50 out of more than 400 authorized titles. In these circumstances, Odex applied under Order 24 Rule 6(5) of the Singapore Rules of Court (Cap 322, R 5, 2006 Rev Ed) for the pre-action discovery of documents from various local Internet service providers, to identify the illegal downloaders, based on 981 selected IP addresses of Internet users who were recorded as having carried out the highest instances of such uploading and downloading via the BitTorrent protocol. The defendant Pacific Internet, a local Internet service provider, resisted that application.  (3) Odex’s application for a discovery order failed before the District Court, which held that Odex did not have the locus standi to make the application, since it was only a sub-licensee for most of the video titles (whose infringement Odex complained of). For one title for which Odex was held to be the exclusive licensee (“Mobile Suit Gundam Seed”), the District Court was of the view that Odex had to show an extremely song prima facie case of wrongdoing before the order sought would be made in its favour. As Odex had failed to establish such a case, its application was dismissed.  (4) Odex appealed.  (5) The High Court rejected Odex’s argument that it had the requisite locus standi to apply for a discovery order, in reliance on the Practice Direction 4 of 2005 (“Applications for discovery or interrogatories against network service providers in relation to specific intellectual property issues”) and the Singapore Copyright (Network Service Provider) Regulations 2005 (S 220/2005). Odex had argued that both the Practice Direction and the Regulations refer to an application made “on behalf of a copyright owner”, and in doing so, sanctioned its application as a licensee. The court observed that the Practice Direction did not have the force of substantive law, and that Regulation 3(2)(b) did not pertain to discovery applications. The court also noted that the Singapore Copyright Act did not have an equivalent provision to 17 U.S.C. § 512(h)(1), which would enable a copyright owner or “a person authorised to act on the owner’s behalf” to issue a subpoena to a service provider for identifying an alleged infringer.  (6) The court held that an agent of a copyright owner or an exclusive licensee could not apply in the agent’s own name for pre-action discovery in order to identify infringers. While the copyright owners could use the services of an agent to track down infringers, they had to use their own names to commence civil court proceedings, apply for pre-action discovery and take formal action for substantive relief. Even if Odex were not relying on Order 24 Rule 6(1) for a discovery order but on the inherent jurisdiction of the court to issue a Norwich Pharmacal discovery order, it still had no locus standi to invoke the court’s jurisdiction. Nor could Odex merely claim that it would only use the information to initiate criminal proceedings because as a mere agent, it could not claim to be the right party entitled to relief.  (7) The court reversed the District Court on the requirement for an extremely strong prima facie case of wrongdoing, holding that the court below had prescribed too high a standard of proof. Where there was evidence of wrongdoing, the court would consider the strength of the case by the applicant for discovery order as one of the factors to be considered in the totality of the facts before deciding whether to grant the order in the interest of justice. (8) Nonetheless, the court concluded that it was inexpedient to have the copyright owners start the discovery application all over, especially where on the current appeal, there was an application by some copyright owners to be added as plaintiffs. The court allowed these owners to be added as plaintiffs and allowed disclosure of the subscribers’ information to these plaintiffs as copyright owners for their respective video titles.]

CONTRIBUTORSDaniel SengAssociate Professor, Faculty of Law, National University of Law, Singapore and SJD Candidate at Stanford Law SchoolEmail: danseng at stanford.edu

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