Proposed Changes to Singapore’s Copyright Law – Blocking Websites The Internet Society Forum and Webcast on the Proposed Amendments to the Copyright Act of Singapore, April 2014

PRESENT SITUATION IN SINGAPORE

• Rights holders issue “take-down” notice to a network service provider (“NSP”) or internet service provider (“ISP”)

Please disable access to / remove copyright

infringing material from your network.

RIGHTS HOLDER ISP / NSP

I’ll think about it

THE ISP / NSP MAY NOT RESPOND

• Rights holder needs to sue for copyright infringement

I will go to court to get an injunction against you for

copyright infringement

RIGHTS HOLDER ISP / NSP

But you will waste time and money, and your outcome is uncertain

Sigh. You are right.

PROPOSED ALTERNATIVE

• Rights holders can apply directly to the Courts

Please give me an injunction to prevent access to pirate sites

RIGHTS HOLDER

ISP / NSP

Yes, sir. I will block the sites.

You don’t need to show that ISPs’ committed

copyright infringement. So I’ll grant the injunction

HIGH COURT JUDGE

WHO CAN APPLY

Can I apply for an

injunction?

ISP / NSP

I can also present my case if I wish, and rights holders

will also need to notify the website owner.

Only if you are a rights holder or

exclusive licensee

HIGH COURT JUDGE

WHO IS AN "EGREGIOUS" ONLINE LOCATION

• Online locations which clearly and flagrantly infringe copyright,

• NOT search engines, e.g. Google or Yahoo,

• NOT websites based primarily on user-generated content, e.g. YouTube.

WHAT FACTORS ARE CONSIDERED

• (a) Whether the online location’s primary purpose is to commit or facilitate copyright infringement.

• (b) Whether the online location makes available, and/or contains directories, indexes or categories of, the means to commit copyright infringement.

• (c) Whether the owner of the online location demonstrates a disregard for copyright.

• (d) Whether access to the online location has been disabled by orders from the courts of other countries on grounds of or related to copyright infringement.

• (e) Whether the online location contains guides or instructions on circumventing measures that disable access to the online location.

• (f) The number of visitors to the online location.

APPEALS, DURATION, FOLLOW UP

• The injunction is permanent

• The site owners, ISPs or rights holders can appeal to the Court of Appeal

• An applicant can obtain another injunction if the original website has assumed a different IP address or URL

RIGHTS HOLDER

STOP!

COMPARISON WITH US LAWS AND TREATIES

DMCA (Digital Millennium Copyright Act)

• Service providers are not liable if

– The material was put online by someone else

– The service provider does not have knowledge

– Upon notification, he must respond expeditiously act to remove/ disable access

I’m sending you notice that you have infringing material

on your site

RIGHTS HOLDER ISP / NSP

I’ll respond expeditiously act to remove/ disable access

Good, otherwise you could be liable for infringement

DMCA Misrepresentations

I’m sending you notice

that you have infringing material on your site

RIGHTS HOLDER

ISP / NSP

I’ll respond expeditiously act to

remove/ disable access

Hey, you knowingly lied that my material was

infringing. It isn’t!

Oops. My bad

I will sue you for damages and lawyer’s fees!

Wrongly Accused

DMCA Counter Notice

Hey, the other guy knowingly lied that my material was infringing.

It isn’t!

Wrongly Accused

Send me a Counter-Notice and I’ll look into it

ISP / NSP

ACTA (Anti-Counterfeiting Trade Agreement)

• Singapore is a signatory, so we must amend our Copyright Act to comply

• Criticisms

– It was made in secret, not voted on

– It focuses on the rights of the content industry, not users

– It makes some copyright infringement into crimes (e.g. distribution on the Internet)

– It requires countries to have three strikes laws

– It requires courts to have 'provisional measures' with no immediate right of reply

ACTA: Three Strikes Laws

• If you get three CLAIMS of copyright infringement, you can lose access to the Internet

• These claims can be unproven, non-commercial claims

ISP / NSP

Sorry, this is the third time someone has claimed against you.

You will no longer have Internet access.

But I’m innocent! There’s no proof!

ACTA: Provisional Measures

• “Provisional measures” = actions taken by the court before a full trial is heard

But I didn’t have the chance to be heard in court!

I have to grant an injunction against you because the rights holder says any delay

is likely to cause irreparable harm

HIGH COURT JUDGE

TPP (Trans Pacific Partnership)

• Singapore is also a signatory, so we must amend our Copyright Act to comply

• Criticisms – It is being negotiated in secret (though leaked) – It could make the 1998 DCMA rules part of an international

treaty, so none of the signatories (including USA) can amend or update them

– It could provide copyright owners power over “buffer copies” – It would encourage implementation of three strikes laws – It could criminalize small scale infringement – It could reduce limitations and exceptions, e.g. fair use, use by

libraries preservation, and use of works in accessible formats by the disabled

• BUT: It’s a secret

What to do next

• Watch the presentations at http://isoc.sg and read the text that Internet Society (Singapore) has submitted to Ministry of Law

• Send your feedback on the proposed changes to info@isoc.sg or Tweet #isocsg – Internet Society (Singapore) is still compiling

• Share this with your friends, colleagues and anyone who could be affected by changes to Internet access in Singapore