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Copyright owners face difficulty in preventing the infringement of their copyright and the enforcement of their rights. These difficulties are presented, amongst others, in the form of constantly evolving technology designed to circumvent technical protections put in place to prevent copying, and evidential difficulties in proving the identity of the infringers. For example, the shift from online ‘file-sharing’ to online ‘streaming’ websites, made possible by ever-faster internet connections worldwide, is one recent phenomenon that has made it harder to prove the infringer’s identity.
In Singapore, the recent amendments to the Copyright Act (the “Act”) demonstrate a step towards assisting copyright owners face these challenges, introducing a new remedy. According to the amended Act, copyright owners may now obtain a “blocking order” in order to compel Network Service Providers (“NSP”) to block websites that commit or facilitate infringement of copyright in their copyrighted material.
Before the Amendments to the Act
Before the recent amendments to the Act, in order to put a stop to the infringement of their copyright online, rights owners had to serve the NSP a notice to take down the infringing copy (“take-down notice”), as found in the Schedule to the Copyright (Network Service Provider) Regulations.
The notice would require the NSP to remove the infringing copy from the NSP’s network or disable access to the online location where the infringing copy may be accessed.
If the NSP does not comply with the take-down notice, the rights owner would have to obtain an injunction by suing the NSP itself for primary or secondary copyright infringement in order to stop the infringement. Establishing infringement would necessarily take time, and rights owners would face significant uncertainty and legal costs.
With the recent amendments, however, rights owner can now apply directly to the Courts for injunctions to block access to flagrantly infringing websites - that is, websites that clearly and blatantly infringe copyright. They can now do so without having to sue the NSP for copyright infringement. This new regime exists as an alternate remedy to the current “take-down notice” mechanism described above.
The Amendments to the Act
This new regime is enacted by the new Section 193DDA(1) of the Act, which states the following:
“Where the High Court is satisfied, on an application made by the owner or exclusive licensee of copyright in a material against a network service provider, that —
(a) the services of the network service provider have been or are being used to access an online location, which is the subject of the application, to commit or facilitate infringement of copyright in that material; and
(b) the online location is a flagrantly infringing online location,
the High Court may, after having regard to the factors referred to in section 193DB(3), make an order requiring the network service provider to take reasonable steps to disable access to the flagrantly infringing online location.”
As such, a successful application to the High Court under section 193DDA of the Act would permit you to instruct an NSP in Singapore to disable its users’ access to an online location that is “flagrantly infringing”. To do so, the right owner would have to demonstrate to the High Court that the NSP’s services are (1) being used to access an online location to commit or facilitate infringement of copyright in that material; and (2) the online location is a flagrantly infringing online location.
Flagrantly Infringing Online Location
A pertinent question at this point is, “What constitutes “flagrantly infringing online location”?” According to section 193A of the Act, a “flagrantly infringing online location” is “an online location which is determined by the High Court under section 193DDA to have been or is being used to flagrantly commit or facilitate infringement of copyright in materials”.
In determining whether an online location has been or is being used to flagrantly commit or facilitate infringement of copyright in materials, according to s 193DDA(2) of the Act, the High Court shall consider a non-exhaustive list of matters:-
(a) whether the primary purpose of the online location is to commit or facilitate copyright infringement;
(b) whether the online location makes available or contains directories, indexes or categories of the means to commit or facilitate copyright infringement;
(c) whether the owner or operator of the online location demonstrates a disregard for copyright generally;
(d) whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
(e) whether the online location contains guides or instructions to circumvent measures, or any order of any court, that disables access to the online location on the ground of or related to copyright infringement; and
(f) the volume of traffic at or frequency of access to the online location.
Variation of site-blocking order
After obtaining a site-blocking order, pirate sites may still ‘site-hop’ by changing either their Uniform Resource Locator (“URL(s)”) or their Internet Protocol Addresses (“IP addresses”). This will allow pirate sites to circumvent the site-blocking order as end-users are now able to access what is essentially the same website through a different URL or IP address.
In light of this, the Singapore Parliament has expressly included a provision which allows parties to the site-blocking order, as well as the website owner, to “apply to vary the Order if the web address of the website has been changed, such that the blocking is circumvented”.
Only rights owners and their exclusive licensee can claim for relief under the new Section 193DDA
Based on the wording of section 193DDA, relief under the same is only available to “owner[s] or exclusive licensee[s] of copyright in a material”. The fact this is so may limit the effectiveness of this new Section 193DDA in practice, given usual commercial practice adopted by the music and film industry when making rights licensing arrangement.
Often, the party who bears the responsibility of policing and enforcing against infringing activity is the territorial sub-licensee, which often derives its licence from a master licensee for the region. In many cases, this master licensee may not even be an exclusive licensee.
Since the amendments do not provide for non-exclusive licensees to make application under the new regime, sub licensee will still have to rely on the support of the exclusive licensee or owner to make the application for an order under section 193DAA. For practical reasons, such support may not always be readily obtainable.
How effective will the amendments be under the Act?
The amendments unfortunately cannot prevent infringements of copyright completely. Given the advancements in technology, people are equipped to find other ways of infringing copyright. For example, even if access to flagrantly infringing online locations is disabled by local NSPs, end-users can easily circumvent such measures by either using the now widely available Virtual Private Network services offered by service providers on the internet, or simply by using another website or uniform resource locator that is not yet blocked.
From a practical point of view, given that flagrantly infringing online locations often allow access to infringing works that are owned by different parties (often competitors), there might be commercial reluctance on
the part of copyright owners to expend legal cost that might not only benefit themselves but their competitors as well.
However, the amendments certainly reflect the Singapore government’s commitment to protect and promote creativity and intellectual property rights. The amendments are not only theoretical, but have also been put in practice. On 11 February 2016, the High Court found that Solarmovie.ph was a “flagrantly infringing online location” and ordered that NSPs disable access to the said website. It can be seen that Singapore is taking a serious attitude towards intellectual property rights reforms and building a strong copyright regime in which the creative sector can flourish.
We encourage content owners to continue to stand up for themselves in this battle against piracy and urge the public to respect intellectual property rights as the protection of intellectual property rights would ultimately lead to a sustainable economy.
This article is written by Samuel Seow Law Corporation. For any comments or suggestions for collaboration, contact the principal, Samuel Seow at email@example.com.
Samuel Seow is the Managing Director of Samuel Seow Law Corporation and is also Foreign Legal Advisor to Seow & Associates. Mr Seow’s expertise is in the field of intellectual property law and general commercial and corporate law. He also has several years of experience dealing with a wide range of property related transactions, with special focus on the application of these laws to the entertainment,
arts and media industries. Mr Seow is a much recognised name in these industries. In 2010, he received
the Spirit of Enterprise Award, given out annually to a select few in recognition of entrepreneurial spirit
Blocking the Pirates: Section 193DDA of the Copyright Act
Samuel Seow Law Corporation
The Internet poses a opportunities to all copyright owners as, suddenly, the world is open for their reach and the costs for distribution and exploitation can now be, potentially, greatly reduced. However, the connectivity that the Internet presents coupled with the anonymity that it offers has resulted in flagrant and widespread copyright infringement.