Copyright Protection and Infringement Outside Singapore

Copyright is something that exists all around us – in the videos that we watch online to bide our time, in the music being blasted at shopping malls, and even in this article that you are reading now. In an increasingly globalised world, however, copyright owners have to worry about possible copyright infringement not just in their home jurisdiction, but also abroad.

If you are a copyright owner, you might be wondering whether you have any recourse against such overseas copyright infringement. This article will cover the issues of copyright protection and infringement outside Singapore, which will hopefully bring more clarity if you are facing the situation of your copyright being infringed abroad. It will explain:

• What is copyright
• Whether copyrighted works in Singapore and protected overseas
• What is copyright infringement
• Exceptions to copyright infringement
• What you can do if your copyrighted works have been infringed outside of Singapore
• Whether you can take action for moral rights infringement overseas

What is Copyright?

Copyright is an Intellectual Property (IP) right that protects the expression of ideas (but not the idea itself). Copyright protects expressions of ideas by granting the copyright owner of the work a bundle of rights. This bundle of rights grants the copyright owner exclusive rights to reproduce, publish, perform, communicate and adapt his or her work.

In Singapore, the law on copyright is governed by the Copyright Act. Under the Copyright Act, the following material are protected:

• Literary works, e.g. books, newspaper articles, blog posts;
• Dramatic works, e.g. screenplays, choreographic notation;
• Musical works, e.g. melodies, sheet music;
• Artistic works, e.g. paintings, sculptures, photographs;
• Sound recordings, e.g. audiobooks, speeches, sound effects;
• Films, e.g. movies;
• Broadcasts, e.g. television or sound broadcast;
• Cable programmes, e.g. images and sound included in a cable programme service; and
• Performances, e.g. performances by musicians, singers and comedians.

Therefore, if your work falls under one of the above categories, it will be protected by copyright in Singapore.

Are Copyrighted Works in Singapore Protected Overseas?

Copyright created in Singapore is also protected in countries that have been designated as “reciprocating countries”. Such countries include countries that are signatories to the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).

The TRIPS is an international treaty that governs intellectual property rights globally, and which establishes minimum standards of protection and enforcement that each government has to give to the intellectual property held by nationals of fellow members. Examples of countries that are signatories to TRIPS include the United States, United Kingdom and China.

Apart from that, the Minister for Law can also designate a country as a “reciprocating country” if he/she is satisfied that works protected by copyright in Singapore are or will be adequately protected under the law of that country as well.

What is Copyright Infringement?

Copyright infringement happens when someone exercises the copyright owner’s bundle of rights (see above) without his consent, and the use is not a permitted use. An example of copyright infringement in Singapore could be the recording of a film in a movie theatre in Singapore, and releasing copies of the recording for local sale afterwards, without the consent of the film’s copyright owner.

Copyright infringement can also happen overseas. For example, if a person records a staged performance by a theatre company in Singapore, and distributes it for profit overseas, such a person would have infringed a copyrighted work in Singapore, overseas.

Exceptions to Copyright Infringement

As stated above, using a piece of copyrighted work is not infringement if it falls under an exception to infringement. The main exception to infringement is if the particular use can be categorised as a permitted use.

Part 5 of the Copyright Act 2021 sets out the permitted uses of copyrighted works and protected performances, and clarifies that where an act in relation to a work is a permitted use, then that act is not an infringement of any copyright in the work.

There are two ways that a person can argue that his/her use of a copyrighted work is a permitted use. First, the user can rely on the general “fair use” exception in Part 5. Second, the user can show that the use falls under a specific permitted use in Part 5.

The “fair use” exception is a general open-ended exception that leaves it up to the court to determine if the user’s use of a copyrighted work was a “fair use”. When making the determination, the court will consider all relevant matters, including:

• The purpose and character of the use, such as whether it is of a commercial nature, or whether it is for non-profit educational purposes;
• The nature of the copyrighted work or performance;
• The amount and substantiality of the portion used in relation to the whole copyrighted work or performance; and
• The effect of the use upon the potential market for, or value of, the copyrighted work or performance.

There are also special applications of the “fair use” exception in relation to the use of copyrighted works in reporting news, criticism or review, and research or study. For example, if a work is being used for the purpose of reporting news, then the work generally has to be sufficiently acknowledged for the use of it to be considered fair.

Apart from the “fair use” exception, other specific permitted uses in Part 5 of the Copyright Act include:

• Using copyrighted work for educational purposes of an educational institution;
• Making, distributing or making available accessible format copies of copyrighted work for persons with print disabilities;
• Copying copyrighted work to aid persons with intellectual disabilities;
• Using copyrighted work in public collections such as galleries, libraries, archives and museums; and
• Copying or communicating copyrighted work for computational data analysis.

What Can You Do If Your Copyrighted Works Have been Infringed Outside of Singapore?

If you are a copyright owner, and have reason to believe that your copyrighted works have been infringed overseas, you can bring an action against the infringer for copyright infringement in the Singapore courts.

If the court assesses that your copyright has indeed been infringed, the court may grant remedies such as:

• An injunction, i.e. an order for the infringer to stop the infringing act;
• Damages, i.e. compensation for the losses incurred by the copyright owner as a result of the rights infringement;
• An account of profits, i.e. an order for the infringer to give the copyright owner the entirety, or a portion, of the profits earned through the commission of the infringing act;
• A delivery up order, i.e. an order for the infringing items to be handed to the copyright owner; and
• A disposal order, i.e. an order for the infringing items to be disposed of or destroyed.

As mentioned previously, even if the infringer is located overseas in a reciprocating country, you will be able to avail yourself of the remedies that can be granted by the Singapore courts pursuant to the Copyright Act.

However, even if the court grants the remedies in your favour, you might face difficulties in ensuring compliance with the orders made by the court since the infringer’s assets might be located in a different jurisdiction. In that case, you might have to apply to the courts in that jurisdiction for the judgment rendered by the Singapore courts to be enforced there. A copyright infringement lawyer will be able to advise you on this process and file the necessary paperwork should you decide to proceed with it.

Can You Take Action For Moral Rights Infringement Overseas?

The Copyright Act also grants moral rights to authors of copyrighted works and performers of protected performances in Singapore. These moral rights include:

• The right to be identified as the author/performer, which is infringed if the user fails to identify the author/performer when he/she publicises, performs, or in any other way communicates the work to the public;
• The right against false identification, which is infringed if the user asserts or implies that some other person is the author/performer;
• The right not to be falsely identified as the author of a copy of a work that had not been made by him or her, i.e. if the user makes a copy of the work, and represents that the copy was made by the original author; and
• The right not to have an altered copy/recording of the work/performance represented as being unaltered.

The Copyright Act protects an author/performer’s moral rights from infringement by an act done in Singapore. However, the moral rights of an author/performer are not infringed by any act done outside Singapore. Essentially, this means that you will not be able to succeed in a claim or obtain any remedies in Singapore against an infringer who infringes your moral rights abroad.

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Although remedies are not applicable to moral rights infringed overseas, you can have recourse in the Singapore courts if your copyright is infringed abroad. This should hopefully bring some comfort to copyright owners in Singapore.

If you require advice on whether your works are protected by copyright in Singapore, and what recourse is available to you if you suspect that your copyright has been infringed abroad, you may consider consulting with experienced copyright infringement lawyers in Singapore. A lawyer will be able to provide you with the legal advice required, as well as to assist you with any subsequent litigation matters.