Copyright Infringement in Singapore: Suing the Infringer and More
What are My Rights as a Copyright Owner?
The Copyright Act (CA) establishes that the copyright owner of a work has the exclusive right to:
- Reproduce the work;
- Publish the work if the work is unpublished;
- Perform the work in public;
- Communicate the work to the public;
- Make an adaptation of the work; and
- To do any of the above acts in relation to a work that is an adaptation of the first work.
In Singapore, copyright protection is conferred automatically when the work is created. There is no need to register or comply with other formalities in order to enjoy protection.
What is Copyright Infringement?
Your copyright may be infringed if someone does any of the exclusive rights listed above without your consent.
For example, if you are the owner of a photograph and someone uploads that photograph on his blog without your consent, he may have infringed your exclusive rights to reproduce your work and communicate that work to the public.
What If the Copyright Infringement Takes Place Overseas?
Singapore has entered into international agreements with other countries, such that if you are a Singapore citizen or resident, your work will be given copyright protection in these countries as well.
The Berne Convention for the Protection of Literary and Artistic Works and the World Trade Organisation Agreement on Trade-Related Aspects of Intellectual Property Rights are examples of international agreements that Singapore is a party to.
Your work will therefore be protected in any country which is a member of these international agreements.
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How Do I Establish Copyright Infringement?
To establish a claim in copyright infringement, you must be able to fulfil the following requirements:
- Your work is protected by copyright and you are the owner of the copyright
- It can be proven that the person has copied your work
- The person has copied the whole or a substantial part of your work
1. Your work is protected by copyright and you are the owner of the copyright
Generally, the court will presume that:
- Your work is protected by copyright; and that
- You are the owner of the copyright.
However, it is common for the alleged infringer to challenge your claim to copyright protection and ownership. If this happens, you will have to file an affidavit with assertions of relevant facts to prove your case.
How do I know if my work is protected by copyright?
Your work is protected by copyright if it meets all the following requirements:
- It belongs to a protectable subject-matter
- It is original
- It is still within the duration of copyright protection
Despite what their names suggest, literary works and artistic works do not need to have literary or artistic merit. A work is considered a literary work if it is written down and can be read. Thus, even mundane items such as recipes or lists of customer names and phone numbers can be protected by copyright.
On the other hand, examples of artistic works include sculptures, drawings, digital images, designs and photographs. The work does not need to have an artistic quality – for example, engineering drawings or bar graphs are also considered artistic works.
It must be noted that copyright protects only the expression of an idea and not the idea itself. Thus, a new business idea or the concept of a new game show that has not been written down would not be capable of protection. However, if these ideas were written down, they could be protected as literary works.
Your work is original
Literary, dramatic, musical and artistic works only acquire copyright protection if they are original works. The requirement of originality does not mean that the work must be novel, exciting or innovative. It only means that the work must have originated from the author and cannot be copied from another work.
A work may be original and enjoy copyright even if it is very simple. For example, a simple trade logo comprising 4 alphabets and an embellishment has been held to be an original artistic work by the courts.
Your work is still within the duration of copyright protection
For literary, dramatic, artistic and musical works that are published during the lifetime of the author, the duration of copyright protection lasts for the life of the author plus 70 years. For works that were published after the author’s death, the copyright lasts for 70 years after the date of first publication.
Sound recordings and films are protected for 70 years from the first publication. Broadcasts and cable programmes are protected for 50 years from the making of the broadcast or airing of the programme. Published editions of works are protected for 25 years from the first publication of the edition.
How do I know who owns the copyright?
Establishing ownership is important as only the owner of the copyright can bring a legal action. While the person who creates the work is usually the owner of the copyright, there are two exceptions.
Generally, if the work is created by an employee during the course of his/her employment, the copyright is owned by the employer.
In the specific case of employees who work for a newspaper, magazine or periodical, the employer has limited copyright ownership. The employer has the limited right to publish the work and reproduce the work for such newspaper/magazine/periodical. The employee retains all other rights, e.g. the right to perform the work in public or publish the work elsewhere.
For example, a writer for a newspaper would not need permission from the newspaper agency to publish a collection of her articles, which were previously published in the newspaper, in her own book.
If a photograph, painting/drawing of a portrait, or an engraving is commissioned and the author of the work is paid the market rate for the work, the commissioner owns the copyright.
In all other instances of commissioned works, the copyright owner remains the author of the work. For example, the copyright of a drawing of a house would remain with the author of the work as the exception applies only to a drawing of a portrait.
In contrast, the copyright of wedding photographs would be owned by the wedding couple who commissioned the photographs, rather than the photographer.
2. It can be proven that the person has copied your work
There must be a causal connection between the allegedly infringing work and the original work. There is no copyright infringement if the other person comes up with a work that is similar to yours through independent means.
For example, it is possible for someone with no knowledge of your work to come up with a similar logo design through his own research and creative process.
However, subconscious copying is still considered an infringing act of copying. This occurs when it can be shown that a person has come across your work before but he cannot remember this consciously. Even if he honestly believes that he came up with a similar logo design on his own, he may still be liable for copyright infringement.
Due to the difficulty of showing that someone has copied your work, the courts apply a helpful presumption. If you can show that a party has prior access to your work and that there is a substantial similarity between the works, it will be presumed that copying has taken place. The onus is then placed on the alleged infringer to rebut this presumption by showing evidence of independent creation.
3. The person has copied the whole or a substantial part of your work
If a person uses your photograph on his own website without any alterations, that is considered a reproduction of your work in its whole form and it is the most straightforward example of infringement.
However, in cases where a person may have made certain changes to your work when using it, for example, by editing your photograph, copyright infringement is only made out if it can be shown that a substantial part of your work has been copied.
The focus is on the quality rather than the quantity of the part copied. Thus, even if the person has only copied a small amount of your work (e.g. one part of your logo design), it can be considered the copying of a substantial part if that part is considered visually or artistically significant to the work.
In contrast, if someone copies your photograph and merely overlays their own logo and name over your photograph, that may not be considered a significant change, and you can show that they have substantially copied your work.
It should be noted that even though simple works are protected by copyright (as mentioned above), the simplicity of the work will be taken into account at this stage. The more simple the work, the more substantial the copying must be for the court to find that an infringement has been made.
Thus, even changes to your original work that seem minor may be considered enough for the courts to find that no infringement has occurred.
For example, in a case that concerned a simple drawing of a hand holding a pencil while ticking a box, the court found that there was no substantial copying because the allegedly infringing work, which also showed a hand holding a pencil while ticking a box, had positioned the hand slightly differently.
The court reasoned that the concept of the drawing was a very simple one, and there were only so many ways to express the idea of a hand holding a pencil while ticking a box (such as how a square can only be drawn as a square). Thus, a slight difference in the position of the hand was enough for the court to find that there was no infringement.
Exceptions to Copyright Infringement
General defence of fair dealing
The CA provides a general defence of fair dealing, where the copying of a work is not considered an infringement if the extent of the copying is “fair”. This defence aims to balance the interests of the copyright owner with the social benefits that can be enjoyed if third-parties had access to their work.
It should be noted that this defence of fair dealing is not the same as the defence of fair use in the United States, although it bears some similarities.
Section 35(2) of the CA provides a non-exhaustive list of factors that the court will take into account in deciding if the use of the work is “fair”:
- The purpose and character of the dealing, including whether the dealing is of a commercial nature or for non-profit educational purposes. The courts are less likely to find that a commercial use of the work is fair.
- The nature of the work or adaptation, i.e. whether it is fictional or factual in nature. For example, the courts are more likely to find that the copying of a news broadcast (factual), as opposed to a motion picture (fictional), is fair dealing.
- The amount and substantiality of the part copied, in relation to the whole work or adaptation. If the use of the work is minimal, the court is likely to find that the dealing is fair. The focus is on quality rather than quantity. For example, the copying of a mere 15% of a memoir can be considered unfair dealing if these passages make up the most moving parts of the book and are highly significant to the work.
- The effect of the dealing on the potential market for, or value of, the work or adaptation. Where the use of the work extensively harms the marketability of the original work, the courts are less likely to find that the dealing is fair. In contrast, if the original work had been distributed freely, the courts are more likely to find that the dealing is fair.
- The possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price. The court is more likely to find that the dealing is fair if the third-party made reasonable inquiries into the possibility of obtaining the work at the market rate, and whether he attempted to obtain the work on such terms.
As the list of factors in section 35(2) is not exhaustive, the courts have also considered other factors such as whether the third-party acted in good faith and whether the use of the work is in the public interest.
It is important to note that the above factors merely provide guidance for when the use of a work might be considered fair. Ultimately, the weight of each factor and how the court chooses to balance the parties’ interests will depend on the circumstances of each individual case.
If you think that someone has infringed your copyright and he/she seeks to rely on the defence of fair dealing, you are advised to consult a copyright lawyer who can assess the merits of your case.
Fair dealing for specific purposes
Sections 36 and 37 of the CA recognises that fair dealing can occur when the work is used for specific purposes, such as:
- Criticism or review
- Reporting of current affairs
The use of the work for these purposes must still be fair and there must be sufficient acknowledgment of the original work (i.e. there must be a reference to the work’s title and author).
Fair dealing for the purpose of criticism or review
In considering whether the use of the work for criticism and review is fair, the court will take into account factors such as:
- The amount copied
- The proportion of work copied relative to the new comments that criticise or review the work
- Whether the copied work is a published or unpublished work
For example, using a long extract of the work and attaching only short comments to it may be considered unfair dealing.
Fair dealing for the purpose of reporting current affairs
In the case of using the work for the reporting of current affairs, it should be noted that “current affairs” is not narrowly understood to mean only the reporting on news programmes by news agencies. There must, however, be an element of public interest in reporting the work.
What to do If Someone Infringes My Copyrighted Work?
Bringing a lawsuit against the infringer can be time-consuming and costly. Furthermore, if you have a commercial working relationship with the infringer and a dispute over the use of your copyright arises, the adversarial nature of court proceedings can also have a negative impact on your business relationship.
You may therefore wish to explore alternative dispute mechanisms (such as negotiation and mediation) prior to taking legal action as a last resort.
Negotiation should be your first step to resolving the dispute. Negotiation is a process by which the parties and their legal advisors (if any) seek to resolve the dispute amicably by reaching a compromise.
It is the most flexible method of dispute resolution as the format of the negotiation is entirely up to the parties. For example, parties can agree to keep the matters relating to the dispute confidential. It is also the most cost-effective option as only the parties are involved, and no third-party adjudicator is appointed.
Mediation combines the flexibility and compromise-driven approach of negotiation with the supervision of an objective third-party (i.e. a mediator) who can help to bridge the parties’ differences. You can appoint a lawyer or an industry practitioner who has expertise in copyright law as your mediator.
Should mediation be successful, i.e. parties are able to reach an agreement on what future actions should be taken to resolve the dispute, a settlement agreement can be written up to this end.
The settlement agreement can then be enforced as an order of court if it satisfies the requirements set out in section 12 of the Mediation Act. For example, the agreement must be jointly submitted to the court by the parties within 8 weeks of the agreement being reached.
It is recommended that you consider mediation only after you have attempted negotiation. This is because the appointment of a third-party mediator will incur extra costs. Nevertheless, mediation is still an attractive option as it may be significantly cheaper than bringing a lawsuit. The timeline will also be determined by the parties, compared to litigation which is constrained by the court’s schedule.
In Singapore, there are 3 forums for mediation:
- The World Intellectual Property Organization (WIPO) Arbitration and Mediation Centre
- The Singapore Mediation Centre
- The Singapore International Mediation Centre
If your dispute concerns international parties with related disputes in multiple jurisdictions, the WIPO Mediation option may be the most beneficial.
Should mediation fail, you may consider commencing legal action as a last resort.
Commencing a legal action
The Copyright Tribunal in Singapore has the jurisdiction to resolve copyright disputes and issue orders that are binding on the parties.
Where the dispute concerns a general issue of copyright law, rather than factual issues that are specific to the parties, the Copyright Tribunal has the power to refer the matter to the High Court. The forms for filing an application to commence a legal action at the Copyright Tribunal can be found here.
Taking legal action will be more costly and time-consuming compared to negotiating or mediating the dispute. The process will also be adjudicated in a public forum. Hence, if your dispute concerns sensitive commercial information, resolving your dispute using either negotiation or mediation may be more suitable.
What are the available remedies?
If you bring a lawsuit, the following civil remedies are available:
- An injunction: the court can grant an injunction to stop the infringer from doing something, e.g. from continuing to publish your work.
- Damages: the court may award you damages to compensate you for your losses suffered as a result of the infringement. However, where the infringer can show that he was not aware and had no reasonable grounds to suspect that the act he committed was an infringement of the copyright, you will not be entitled to damages. The court can order an account of profits instead.
- An account of profits: the court may award you an account of the infringer’s profits gained from the infringement.
- Statutory damages: if you are not able to prove that you have suffered a loss as a result of the infringement, you may wish to elect for statutory damages instead. There is a ceiling of $10,000 per work and an aggregate ceiling of $200,000 for each legal action. The amount of statutory damages awarded will be decided by the courts, with reference to the following factors:
- The nature and purpose of the infringing act, including whether the infringing act was of a commercial nature or otherwise;
- The flagrancy of the infringement;
- Whether the infringer acted in bad faith;
- Any loss that the copyright owner has suffered or is likely to suffer by reason of the infringement;
- Any benefit shown to have accrued to the infringer by reason of the infringement;
- Conduct of both parties before and during proceedings;
- The need to deter other similar infringements; and
- Any other relevant matters.
Should I Engage a Lawyer and How can a Lawyer Help?
If you wish to bring a legal action for copyright infringement, you should consult a copyright lawyer.
Copyright law is a complex area of law and it will be helpful to have a professional assess the merits of your case, discuss the possibility of any defences applying to the alleged infringer, and provide advice on which remedies will be the most suitable for you.
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