Out-Law News | 08 Apr 2014 | 9:54 am | 3 min. read
The Copyright (Amendment) Bill 2014 would allow rights holders to apply directly to the courts for injunctions to "prevent access to sites that clearly and blatantly infringe copyright," a statement by Singapore's Ministry of Law said.
Under current copyright legislation, rights holders can issue "take down" notices to ISPs and network service providers (NSPs), requesting they remove or block access to infringing sites, as is currently the case. But if the ISP fails to respond to the request, the rights holders have to sue the ISP for copyright infringement and seek an injunction against the ISP, forcing it to remove or disable access to the infringing material.
"Under the proposed legislative changes, rights holders will also be allowed to apply directly to the courts for injunctions to prevent access to pirate sites without having to first establish ISPs’ liability for copyright infringement," the Ministry of Law said. "This judicial process is more efficient and avoids implicating the ISPs unnecessarily."
"The amendments are aimed at strengthening the rights of copyright holders without getting stumped by legal process and costs," said Bryan Tan of Pinsent Masons MPillay, the Singapore joint law venture partner of Pinsent Masons, the law firm behind Out-Law.com. "There are still some portions for clarification: who pays the cost of the ISP complying with the order? What is the legal effect of the 193DDB(3) notice [the written notice to be served on the service provider] - does it affix the ISP with notice such that the ISP has to make a decision whether to take-down, even before the injunction is applied for, and without the safeguards the injunction process offers?"
The Ministry has launched a public consultation process on the proposals, which is due to end on 21 April. In the consultation process briefing note, the ministry states: "This is targeted at websites that show a blatant disregard for, and that clearly infringe, copyrights. Legitimate search engines and content sharing sites such as Google and YouTube will not be affected."
The proposed change to legislation follows a 2012 review by Singapore's Media Convergence Review Panel (MCRP) which recommended a multi-pronged approach to address online piracy, to include public education, the promotion of legitimate digital content services, as well as the adoption of appropriate regulatory measures.
"Online piracy is a global issue. According to studies commissioned by rights holders, there is a high level of consumption of online copyright infringing content in Singapore. This adversely affects Singapore’s creative sector and the livelihoods of people working in these industries. It also undermines our reputation as an economy that respects the protection of intellectual property," said the Ministry of Law.
It said that the current system, which enables rights holders to issue "take down" notices, but requires them to sue ISPs who fail to act on these "has not been effective."
"ISPs have tended to comply with the notices only if they wish to avail themselves to 'safe harbour' provisions that would indemnify them against certain copyright infringement liabilities," said the statement. "If ISPs do not respond to a take-down notice, rights holders will need to sue the ISPs for copyright infringement and seek an injunction against ISPs to disable access to or remove the copyright infringing material from their network. However, the feedback received is that rights holders have not pursued this avenue because there is uncertainty due to disputes of fact that may arise during the trial (e.g. when establishing the liability for infringement)."
In addition, the new measures would create a list of factors which would help define what constitutes infringing websites. Examples of this would include whether the primary function of the online location is to commit or facilitate copyright infringement and whether the owner of the on-line location demonstrates a disregard for copyright, the Ministry said. This list would be amended, as required.
Applications for injunctions under the proposed new law could only be made by rights holders or their exclusive licensees under the proposals. ISPs would have the opportunity to contest such actions and apply to the courts to overturn injunctions.
The Ministry of Law pointed out that similar approaches to piracy have been taken in countries such as the UK, Norway and Belgium.
It said it had also considered anti-piracy approaches taken by Spain and Malaysia, where rights holders can apply for site-blocking orders from a Government-appointed body. It has also considered those implemented in France, which has introduced a “graduated response” system by which individual internet users are notified of their infringing activity by the ISP, and can be penalised if they continue infringing despite repeated notifications. "We considered the alternatives above but assessed that they may not be suitable in Singapore’s context as they are too intrusive on internet users."