Does
Copyright Last For Too Long In Singapore?
Desmond Chye
ABSTRACT
It is conventionally
accepted that copyright needs to last beyond the death of the author in order
to incentivise authors to create works, and that the lengthy protection period
is but just a small price to pay to promote greater creativity. This orthodox
logic is however riddled with flaws. Principally, copyright actually provides
very little economic incentives for the author to create to begin with. Moreover,
an author’s non-monetary desire to publicly associate with his or her work does
not readily apply after the author’s death. Times have also changed such that public
policy concerns now militate against having an extensive copyright duration.
Finally, copyright law as-a-whole has not sufficiently mitigated the impact of
a long copyright on the public’s access to the work to the point where the long
duration can be justified. This article therefore submits that the right
duration should not exceed the life of the author.
I.
INTRODUCTION
The conventional
narrative is that copyright for authorial works should last a long time to economically
incentivise
authors to create creative works that would ultimately benefit society. In
fact, so persuasive is this view that the global trend over the last two hundred years,
of which Singapore is of no exception, is to dramatically increase the length of the copyright
term to truly biblical proportions: the life of the author plus 70 years after
his or her death. If we consider the average global life
expectancy of a human today, at 72 years, the average copyright term over an authorial
work would easily exceed a hundred years! While this is a very good thing for
the owner of the copyright and his or her heirs, the same cannot be said of the
public at large as a generation of people would be deprived of the work’s
benefits. The question is thus whether such an extensive copyright term strikes
the right balance between promoting intellectual creation and society’s need
for a free flow of information. This article finds that the current copyright duration
does not achieve the right balance at all. To permit copyright to extend beyond
the death of the author, let alone for another 70 years, is excessive. It is
therefore proposed that copyright should be shortened to the life of the author
at most.
II. EVOLUTION
OF THE COPYRIGHT TERM
To understand how
Singapore got to the point where the copyright term for authorial works is
‘life plus 70 years’, we need to look at the evolution of copyright in the
common law world, starting from its origins in the United Kingdom (“UK”). It
was not always the case that the copyright duration was very lengthy, or even
pegged to the life of the author. In fact, when copyright began life as a
creature of statute in the UK with the passing of the Statute of Anne 1709, it only lasted for a very short copyright
period of time: a maximum of 28 years. It was only in 1814 that the 28 year term was substituted
for the life of the author. This lasted for a while until the Copyright Act 1842 which lengthened the
term to 42 years from publication or until 7 years after the death of the
author, whichever is longer. The 42 years period remained the status quo until the enactment of the Copyright Act 1911 (and then in
Singapore through a proclamation made by the Governor of Singapore) which then
extended the copyright term to ‘life plus 50 years’. This British duration then
became the universally accepted minimum period across the world via the Berne Convention of 1948 (“Berne Convention”). The Berne Convention period was subsequently
extended by another 20 years through the TRIPS
Agreement of 1995. Singapore adopted this 20 year extension on 1
July 2004 which has been retained in the new Copyright Act 2021.
III. ANALYTICAL
FRAMEWORK FOR THIS ARTICLE
As there are a myriad
of arguments that may favour the current length of copyright, this article will
split the analysis into four parts. The first part will deal with the economic
arguments for the current copyright term. Here, the article will disprove the
conventional narrative that authors are predominantly money-minded and thus
need a copyright term that lasts beyond their deaths to economically incentivise
them to create. The second part will explore the possible non-economic
arguments for a long copyright and find that these are not sufficiently
compelling to justify a multi-generational copyright. The third part will then
argue that the policy arguments for the long copyright duration are outdated
and unsound. In the final part, this article will posit that copyright law as-a-whole
(subsistence, infringement and defences) has not sufficiently mitigated the
impact of a long copyright on the public’s access to the work to the point
where the long duration can be justified.
IV. ANALYSIS
OF THE ECONOMIC ARGUMENTS
The argument here is
that copyright “provides the economic incentive that is essential to the
creation of new works”. It goes like this: copyright grants authors
exclusive rights in their works, allowing
them to gain financial rewards by monetising those rights. A longer copyright term would thus mean a
greater incentive to create. If so, then the copyright term should last
until the incentive value of a longer term diminishes to insignificance. To the
world at large, this ‘vanishing point’ of marginal utility is determined to be
somewhere between one to two generations after the author’s death. The ‘economic incentive’ theory however rests
on several flawed assumptions, which will be elaborated on below.
A.
Creators are not ‘rational
profit maximisers’
It is conventionally
assumed that authors are ‘rational profit maximisers’ who would only be willing
to expend time, energy and resources in proportion to the expected monetary gains
from their work. This is however false as creators can be motivated by reasons
besides money. Examples of creators working for free would be
those in the open source movement where programmers create and share software
for free and Wikipedia where anonymous volunteers contribute content pro bono. Closer to home, Singaporeans creators from all
kinds of backgrounds have worked for free. Former Prime Minister Lee Kuan Yew
donated royalties from his bestselling books to charitable causes. Local artist Peter
Kiew sketches strangers on the MRT without charge and would vehemently reject
any attempt by contented recipients to pay him for his work. In perhaps the most extreme example, vandals Andreas Von Knorre and
Elton Hinz sprayed graffiti on Singapore’s MRT trains despite knowing full well
that it would have meant hefty fines (and lengthy imprisonment). These examples show that the call to create need not be from
monetary incentives only. The desire to do a good deed, self-satisfaction from creating
something or garnering social reputation (good or bad) may be just as
incentivising as a pot of gold to the author.
B.
Copyright gives too little
economic incentives to create
Even if we buy the
‘rational profit maximisers’ theory, any money to be gained from a multi-generational
copyright is too uncertain to be sufficiently consequential in incentivising
people to create. The biggest issue is that the chance of a creative work being
successful is not very high to begin with. A writer’s odds of success are dismal.
According to the Huffington Post, only 2% of all books will sell beyond 5,000
copies. Digitalisation has also enabled many to be
self-publishers, saturating the market and putting success out of reach of all
but the lucky few. A similar story is also unfolding for artists.
Only 19% of US artists made over $50,000 USD a year in
2016, well below the median US household income of $58,000 USD. This is likely
to be worse in Singapore as our society does not regard art as particularly essential. On the music front, songwriters are also being pummelled. In a
recent article by the UK’s Guardian newspaper, it was estimated that
only one in 10 artists who sign to labels go on to achieve commercial success. The research sector also does not appear to give much profit to its
authors. The famous economist Joseph Stiglitz observed that the bulk of
important research originated from non-profit governmental or educational
institutions, which pay researchers a salary to continue researching, rather
than from commercial entities who compensate the researchers with intellectual
property instead. While YouTube content creators appear to be earning substantial
coin from their work, this is likely an illusion. A recent German study found that 96.5%
of aspiring YouTubers fail to earn enough money to pass the US poverty line. These examples illustrate that a long copyright would be hardly
motivational for creators when their works can barely support themselves, let
alone their successors.
C.
The lottery theory fails to
justify a long copyright
Perhaps the ‘economic incentive’ from
copyright is not from assured returns but rather from the hope of getting great
rewards. Under the ‘lottery’ theory, creators are willing to toil away despite
the low chances of financial success because they seek the chance to strike the
proverbial pot of gold at the end of the rainbow. Copyright would be instrumental here as it protects the chance of
winning the lottery. The longer the term, the more chances the creator will get
to win big. While this may be a plausible reason in more risk-taking nations,
it is unlikely to be so for Singapore because we are notoriously risk-adverse. In fact, a key concern for anyone joining the Singapore art
industry is the lack of a stable income to offset the considerable time and
monetary investment required to join it.
Aside from whether the lottery theory
adequately explains why authors create, there are also serious doubts as to
whether copyright law should promote risk-taking when the chances of success
are so low. This is because people who gravitate towards this kind of risk
taking may be afflicted by an ‘optimism bias’ that clouds their ability to
weigh the pros and cons of their actions properly and ultimately encourages
them to make unwise decisions or act imprudently. It is thus submitted that copyright should not be too long as it
would pander to such dangerous behaviour.
D.
Copyrighted works generate most
of their income at the start of their term
Another problem with the conventional
narrative is the assumption that a copyrighted work would generate earnings
throughout its entire copyright term, which is false for the vast majority of works. The bulk of the income from a
copyrighted work actually comes from the immediate years post publication. For books,
how long it stays on the shelf is up to the ‘vagaries of popular taste’. If a book is no longer popular, the publisher
would stop selling it to make way for more in-demand books. The same applies to other works like art, music
and movies in today’s consumerist society. This phenomenon is especially
problematic for the author because we live in an era of short attention spans
where the purchasing public’s interest in a work can surge rapidly but also
fade at a similar pace. In essence, the author’s work must be in
demand now or it may never be so. While research articles may be more evergreen, it is often the case that their contents cannot
be monetised for a significant amount of time post publication, if they can even be monetised at all.
E.
Authors do not necessarily
benefit from the copyright
There are also
numerous situations where an author may not benefit from the copyright in his
or her work at all. Although the default position in the Copyright Act 2021 is that the author is the first owner of the
copyright in his or her work, the exceptions to this rule can encompass a
large proportion of copyright work creators. An example is the
employer-employee exception. Unless one is lucky, we will all be employees at
some point in our lives, and in predominantly white-collar Singapore, this means we will write many literary works for
the organisation we are serving. These works may be commercially valuable to us,
the white-collared author, but the copyright would be almost always vested in the
employer as the default position is that the employer automatically acquires
the copyright in the employee’s works if the works were done in the course of
the author’s employment. This is made worse by how ‘course of
employment’ is liberally interpreted to also include things that the author
ought to have created for the employer and not the employer’s rivals. It is thus rare for the public at large to
ever benefit from the copyright in their work despite contributing so
disproportionately to the overall volume of copyrighted works.
F.
More monetary rewards do not
equal more creativity
Lastly, the
conventional narrative’s assumption that there is a causal link between
monetary rewards and greater creativity is also suspect. Dangling monetary
rewards may instead undermine the quality of works produced. To explain why this is so, we need to understand
how creators are motivated to create. A creator has two sources of motivation: the
first is an intrinsic one to get self-satisfaction from expressing one’s
creativity, and the second is an external one to create for some rewards,
usually monetary. While having an excess of the first is not
problematic, having too much of the second is. If the extrinsic motivator
becomes so strong that the creator perceives it as controlling, then creativity
drops. This is because the creator would treat the
creative activity as “a means to an end rather than an end in itself”, making him
less personally invested in the work at hand, resulting in a less creative
product. It is thus said that “[t]ruly creative people respond most strongly
to some innate drive to solve problems or to produce art and are unlikely to be
encouraged to make a greater effort by the promise of profit if their work is
successful”.
The correlation
between lower creativity and higher monetary incentives is backed by empirical
evidence. Experiments by various psychologists have shown that “higher monetary
incentives [lead] to worse performance” when cognitive work is being done. Outside of the university context, we see this
play out regularly in the arts scene, especially in the movie sector. Some of
the most commercially successful movies have been slammed for being
‘unimaginative’. Take the famously panned yet commercially successful third
movie of the third trilogy of the popular Star Wars genre as an example. A
quick look at the influential movie review aggregation website Rotten Tomatoes
reveals that the plot was generally criticised as ‘bland’ and ‘derivative’ by
the audience, with much of the problem caused by the studio’s desire to stick
to tried and tested tropes to maximise sales. Such are the perils of using money to
encourage more creative works.
V. ANALYSIS
OF THE NON-ECONOMIC ARGUMENTS
There are two possible
non-economic arguments for a long copyright duration: to protect the creator’s
moral rights, and to cater to the creator’s familial instincts to provide for his
or her family. This section will look at each in turn and conclude that both
are weak justifications for a long copyright term.
A.
The ‘moral rights’ argument is
weak
The moral rights
argument goes like this: authors have a personal connection with their work.
Thus, they want to protect their personality as expressed in it. Conferring on authors ‘moral rights’ in their
work, such as the rights of disclosure, attribution and integrity, enable them
to remain publicly associated with their work. Without such rights, authors would not be
motivated to create new works as their expression would just be appropriated by
someone else post publication. In the context of the copyright duration, moral
rights enable the author (and his or her immediate successors) to continue to require
attribution as a condition precedent to further reproduction of his or her
work. This would then allay the author’s concerns that his or her work would be
passed off by someone else, thereby encouraging the author to create more works.
However, the moral
rights rationale does not justify copyright lasting beyond the author’s death. As
perceptively observed by Ricketson, the “authors’ natural concern to protect
their moral rights during their lifetime becomes less natural after the author’s
death”. Moreover, there are also no practical benefits
to be gained by authors from the way their work is treated post death. Perhaps the preservation of one’s legacy after
death is more compelling on those who believe in the existence of an afterlife.
To these authors, the prospect of looking down from above to see their work still
being attributed to them might be the motivation to create while they still
mingle with the living. This kind of motivation is however unlikely to be
prevalent amongst Singaporean authors as only 34.5% of the population subscribes to a religion
that believes in an afterlife.
B.
Copyright’s appeal to the
author’s familial instincts is minimal
The next oft-cited
reason for why copyright has to last so long is the need to appeal to the
author’s natural instincts to provide for his or her spouse and children. While
this can be a strong emotional pull on individuals to create, it simply does
not apply to the vast majority of creators. As explained previously, the
financial incentives from creating copyrighted works are not usually high
enough to be even capable of sustaining the author during his life, let alone his
or her next generation and spouse. This theory also does not adequately explain
why some of the most creative people did not have any family to leave their
works behind for. Leonardo da Vinci, John Locke and Ludwig van Beethoven were
all single throughout their life but yet they each produced some of the world’s
most influential and timeless works. In Singapore, the iconic singer-songwriter and film director Dick Lee and legal academic cum
accomplished playwright Eleanor Wong are also similarly without any offspring
to leave their influential works to. Even if we do recognise the power of
familial instincts as a core driver of creative content, its relevance to
Singapore is diminishing as more and more Singaporeans are shunning children
and even marriage.
VI. ANALYSIS
OF THE POLICY ARGUMENTS
A.
A multi-generational copyright
fails to advance Singapore’s societal objectives
It is often said that the primary policy reason
why copyright lasts beyond the death of the author is to achieve the societal
objective of enabling authors to provide for their family after their death, presumably so that the government does not have to pick up the tab. This
reason is however flawed on many levels. The most obvious flaw is that this
view is hopelessly out of date. While it is true that copyright was necessary
to support the immediate descendants of the author when the copyright term was
extended to life plus 50 years in 1911, we no longer live in that bygone era. Back
then, most families relied on a single breadwinner for income.
An author who spent many unpaid years creating his work but perished not long
after its publication would have led to his family becoming destitute, and this
was not a remote possibility as a person’s life in that era was often brutish,
nasty and short. Authors and their families no longer face such a predicament these
days as single income families are now the minority in Singapore.
When you add in the extra facts that household incomes have ballooned[58]
and education levels have skyrocketed,
it would be even more ludicrous to think that an inheritable
copyright is necessary to stave off family poverty. The reality today is that an
author’s premature death and corresponding demise of the copyright would not
condemn the author’s family to
crippling poverty because the surviving family members would likely be rich
enough to care for themselves and highly employable in their own right.
Moreover, as the average lifespan has increased dramatically in the last
hundred years, there would now be more than enough time for authors
to earn enough money to bequeath to their family by producing more works, eliminating
the need to rely on continued copyright royalties from any one particular work
after the author’s death.
Another flaw with an
inheritable copyright is that it goes against the principles of a meritocratic
society. This is especially problematic for Singapore because we strongly aspire
to achieve such a society. A meritocracy is a social system where people
get ahead in life based on their own accomplishments rather than on extraneous
factors, such as their parents’ social class or wealth. As such, the core
aspect of a meritocratic society is that one must have earned what he has
received – an individual’s wealth or status must have been ‘merited’ by his
deeds. Inheriting the fruits of someone else’s labour would thus be incongruous
with such a society. Unfortunately, this is exactly what an inheritable
copyright does. The descendants played no part in the creation of the author’s
work but yet are allowed to benefit from it. In short, they did not deserve the
copyright proceeds at all.
While this article
recognises that the meritocracy argument can be extended to include the banning
of all forms of inheritance, it makes no comment on it. It would however suffice to say that an
inheritable copyright poses more problems than other kinds of inheritable property
because, unlike those, copyright can have a very detrimental impact on society’s
technological development if it lasts for too long. Property rights are
inherently ‘selfish’ as they deliberately create zones of exclusivity. This is problematic when the property that is
fenced up is potentially useful information for society. If society cannot
access the information freely for multiple generations, this can produce a
significant drag on its technological progress. It is therefore imperative that
we treat an inheritable copyright as much more than just a mere bequest to one
man.
Conferring upon the
descendants of the author a windfall would also have the perverse impact of
discouraging them to be as motivated to create their own intellectual property.
In a capitalistic society like Singapore’s, the enticement to produce is the core driver of productivity in the
economy so the most effective way of enticing people to produce would be to
distribute income and wealth according to the productivity of each person. This is however absent in the case of an
inheritable copyright because the copyright which is inherited by the author’s
successor would be divorced from the successor’s own productivity. As a result,
since the author’s successor would be richly rewarded without the need to work
anyway, the successor would be naturally discouraged from creating his or her
own works.
Furthermore, permitting
long copyrights would entrench the dominance of the reigning intellectual
property giants of the world at the expense of global economic development. It
is a common criticism of intellectual property rights that they are truncheons
wielded by the more developed world to club the less developed into delaying
their rise up the economic value chain. Although one would no longer think of
Singapore as a developing nation these days, we are apparently still being
clubbed by more developed nations. Despite the shift towards a knowledge based
economy, we remain a significant net importer of intellectual property. To preserve the copyright term would thus
perpetuate the imbalanced trade relationship between the intellectual property
giants and us. Moreover, as Singapore has itself gained quite a fair repertoire
of intellectual property, there is now the moral issue of whether we should also
partake in the same clubbing of less developed nations for our own selfish
gains.
B.
A long copyright term is
superfluous to protect the author’s privacy
A potentially more convincing
policy reason for a long copyright may be that it serves an important role in
protecting the author’s privacy. This would be especially pertinent to
Singapore as we do not have a statutory or common law right to privacy per
se. It might appear odd to use copyright to
protect one’s privacy but it can be a powerful tool if the right conditions are
met. How it does so is by permitting the copyright owner to restrain any
unauthorised reproduction of the copyrighted material which then indirectly
prevents its dissemination to the public. An example of how this would work in
practice is the fact scenario in Lee Wei
Ling v Attorney-General. The dispute there revolved around a
contractual arrangement between the Singapore Government and former Prime
Minister Lee Kuan Yew regarding the rights in some transcripts of interviews of
the latter by the former. Under the arrangement, the former Prime Minister was
to have the copyright over the transcripts while the Government was to have
only the physical right to possession to them. This legal construct had the
effect of restraining the government from reproducing the transcripts without
the former Prime Minister’s consent, effectively granting him the right to
privacy in those documents.
Interestingly, the
previous iteration of the Copyright Act also facilitated this need for greater privacy
safeguards in Singapore by enabling copyright to be perpetual in unpublished
works. This was possible because the copyright term
in an authorial work was pegged to the time when the work is first published or
made publicly available. The relevant provisions were however repealed
in the Copyright Act 2021 as Parliament
found that the need for a bigger pool of works in the public domain outweighed
the justifications for privacy.
However, privacy is
ultimately not a strong justification for a long copyright. For one, there is a
much better way to protect one’s privacy: through the breach of confidence tort.
Under this better method, the protection offered would be more comprehensive, there
is no need for the information to be fixed in some material form, more types of information can be protected, and there are also fewer ways for a defendant
to defend his reproduction of information. Another more fundamental reason is that
protecting the author’s privacy is not the purpose of copyright law. Copyright
in Singapore has always been viewed as a means to an end – the end being the
creation of works for the public to eventually enjoy. It would thus be illogical to increase the
copyright term so as to protect works from ever being seen by the public.
C.
A long copyright term is
impractical
Even if we ignore the
policy arguments raised thus far, there is still the issue of impracticality arising
from copyright lasting multiple generations, in particular, the problem with
orphan works. Orphan works are copyrighted works whose owner cannot be
identified or located because too much time has elapsed since the author’s
death. Such works are highly detrimental to society
because “[t]he inability to request for permission to use the work means that
it cannot be legally used, even if the prospective user has spent much time and
effort to find the owner”. Unfortunately, no adequate solution has been
found for this pressing problem. An ‘orphan works registry’ was floated as a
possible addition to the Copyright Act
2021 but it was shot down by the law reform committee because it was deemed
too administratively costly for the government to operate and would have also
added litigation costs for the parties should they fail to come to an agreement. Aside from this copyright registry idea, other
methods involving the government or a court determining the appropriate
copyright fee were also proposed. These proposals were similarly rejected, on
the basis that they would either lead to
undue market interference, would be too costly for the government to administer
or insufficient to prevent costly litigation between the copyright owner and
the copyright user.
In light of the foregoing,
it is submitted that we have made life unnecessarily difficult for ourselves. The
‘Gordian’s knot’ can be easily untied if we just reduce the copyright term to
only the author’s life. There would no longer be any orphan works to worry
about as it would become very easy to know when the copyright has expired – when
the author’s obituary appears in the newspapers.
VII. IS THERE
SUFFICIENT MITIGATION?
Notwithstanding the
points raised thus far, some may still argue that the nature of copyright as a
limited monopoly right can still accommodate the longer ‘life plus 70 years’
copyright term without overly compromising the public’s free access to the
work. The thrust of such an argument would be that the legal requirements to
find copyright subsistence and infringement are broad enough such that the
public can still make use of the copyrighted work freely for useful purposes.
It is however submitted that the legal exceptions to copyright’s exclusive
power are actually insufficient and even if they may be, they are built on
pillars of sand.
To establish copyright
infringement, the owner must prove that, firstly, copyright exists in the work
allegedly infringed; secondly, there was a substantial taking of the owner’s
work; and, thirdly, the alleged infringer does not have any defences that can
be raised. This article will look at each step in turn.
A.
Copyright subsistence
Beginning with the
first step, finding copyright subsistence, the key criterion that the copyright
owner needs to prove is that the copyrighted work in question had sufficient
‘originality’. This is found when the author applied
intellectual effort towards the creation of the work. As a result, only expressions of facts and ideas can give rise to
copyright. This requirement per se is
however not particularly impactful as anything other than an unorganised dump
of raw facts or ideas would have sufficient originality to find copyright. The
common law therefore created the additional de
minimis threshold which the work must pass to have copyright. Under this rule, the work must be sufficiently ‘consequential’, which is when the work is not ‘commonplace or banal’.
One may argue that it is through this de minimis threshold that the effects of
a long copyright can be mitigated. If common phrases could be the subject of
copyright then the free flow of information in society would be greatly
constricted. It could even go as far as undermining the “evolution of a language and hence the culture
of a society”. As such, by providing
courts with a legal mechanism to exclude certain kinds of works from falling
under the protection of copyright based on how banal or commonplace they are,
the law can avoid the problem of
allowing such works to have copyright.
However, it would appear that the de minimis threshold is incongruous with
the Copyright Act 2021. To see whether
an authorial work is sufficiently consequential to enjoy copyright would amount
to evaluating the work on its merits but that is not permitted under the Act – as
per a plain and purposive reading of it. The common law de minimis
requirement was therefore introduced per
incuriam and would likely crumble in the face of a direct challenge to its
validity.
Moreover, even if some legal witchcraft can
be conjured up to keep it consistent with the statute, the effect of the de minimis threshold is rather minimal. Only
the most banal and commonplace works appear to be deprived of copyright. This
is as very basic things such as ‘rudimentary drawings’ of fire doors and telephone directories have been found sufficiently consequential to have copyright. If
such common and useful things can remain locked behind a copyright paywall,
then it is hard to say whether the de
minimis threshold has a more than de
minimis impact on preventing works from being unduly fenced up from the
public domain.
B. Copyright
infringement
Moving on to the next step, the question is
whether there was a ‘substantial taking’ of the copyright owner’s work. The legal
test to establish this is quite lenient to the copyright owner and thus fails
to mitigate the negative impact of a long copyright. Although the test appears
difficult to make out as the alleged infringer must have overly appropriated
the benefit of another’s skill and labour, it may not actually be so as the copyright owner can avail himself
to multiple legal doctrines to make it much easier to find a substantial
taking. The first is the prima facie
presumption of copying which would arise whenever the defendant’s work is
substantially similar to the plaintiff’s work and the defendant had prior
access to it. This would then shift the burden of proof to the defendant to then
show that he did not copy the plaintiff’s work. As we all know, whoever who
bears the burden of proof would be at a disadvantage in court. This is further
compounded by the fact that the defendant’s intentions are irrelevant and even
subconscious copying would amount to an infringement.
The second stone around the defendant’s
neck is the potential for infringement to be found even though the defendant’s
work did not share any identical portions with the plaintiff’s work – the
‘altered copying’ situation. In such cases, the defendant’s work did not
directly lift any portion of the plaintiff’s work into his, but rather, incorporated
the plaintiff’s work with modifications. Intuitively, one would expect no
finding of infringement since what is appropriated would be the plaintiff’s idea
and not his expression of the idea. Case law however disagrees and finds that an
idea can be protected so long as the idea taken was a ‘detailed’ one. In the English case of Designers
Guild Ltd v Russell Williams (Textiles) Ltd, the plaintiff claimed that her fabric design, which comprised
flowers superimposed onto a red and white striped background, was infringed by
the defendant. Both designs however did not share any identical elements: the
flowers were of a different type and the stripes were of a different thickness.
Only the overall impression was similar. The plaintiff therefore claimed that
the defendant appropriated her idea of using ‘flowers superimposed on a red and
white striped background’. The House of Lords held that this was sufficient to
find infringement by the defendant. In their Lordships’ opinion, there was no
need for any identifiable part of the defendant’s work to be the same as the
plaintiff’s for there to be infringement as having sufficient similarity between
the two would suffice. As such, since the defendant’s and plaintiff’s works were
similar, there was infringement. In so holding, the court permitted ideas to be protected. Recognising
altered copying poses a big problem for copyright law because it blurs the line
between ideas and expressions. Should copyright start protecting the former
then the pool of information that the public can use freely would be
significantly decreased and this would be greatly exacerbated if the copyright
term was biblically long.
C. Defences
to copyright infringement
We shall now turn to the last step –
whether the defendant can avail himself of any defences to excuse his act of
infringement. Numerous permitted uses in the Copyright Act 2021 would excuse an act of infringement. Except for the open-ended general fair use defence in section 190 where the only condition to satisfy is that the defendant’s use
must be fair, which is to be assessed by reference to all factors, including
the Statutory Factors, the other defences are all narrowly defined. The general fair use
defence is therefore the only plausible means to mitigate the effects of a long
copyright sufficiently, but as will be shown below, it fails to do so.
It is submitted that the most important
thing needed to mitigate the effect of a long copyright for the general fair
use defence is to permit the public to freely use the copyrighted work so long
as the purpose of doing so is to build upon it. This would be possible if the
‘transformative use’ doctrine is used to find fair use. Under the doctrine,
fair use would be found if the defendant’s work does not “merely supersede the
objects of the original creation” but rather “adds something new, with a
further purpose or different character, altering the first with new expression,
meaning, or message”. Such an approach would provide the right balance between the
protecting the copyright holder’s interests and the public’s because the copyright
user would be allowed to benefit society using the author’s works so long as he
does not directly compete with the author by using his works for the same
purposes as the author.
However, the open-ended general fair use
defence is a surprisingly narrowly circumscribed one that has no room for the
transformative use doctrine. It remains to be seen whether the local courts
would embrace the transformative use doctrine but it is unlikely that they would. For one, Singapore has
retreated from a purely utilitarian approach to copyright which would encourage courts to support the doctrine. We are now
placing greater emphasis on the ‘moral’ aspects of the copyright, as evidenced
by how the new Copyright Act 2021 has
an entire section devoted to the author’s moral rights, which include, amongst
others, the ‘right to be identified’. Apart from this, the Singapore Government is also trying to brand copyright
infringement as an act of ‘stealing’ in the minds of the public. Another reason is that the structure of the Copyright Act 2021 is at odds with the transformative use doctrine.
The Statutory Factors expressly require the courts to consider not just the
purpose of the infringement, but also the effect the infringement has on the
copyright owner’s income and the nature of the work taken which must necessarily mean that the transformative use doctrine by
itself, which looks only at the purposes of the works, cannot be decisive.
Notwithstanding the above, even if we treat
the general fair use doctrine as sufficient mitigation, there is still the
possibility that an open-ended fair use doctrine is incongruent with Singapore’s
treaty obligations under the TRIPS Agreement. Article 13 of TRIPS sets out a
three-step test to evaluate the legitimacy of any exceptions to copyright: the
exception must be confined to certain special cases, the exception must not
conflict with the normal exploitation of the work, and the exception does not
unreasonably prejudice the legitimate interests of the right holder. A local court has yet to interpret Article 13 but a very persuasive
body, The World Trade Organisation (“WTO”), has done so. A WTO panel in the
United States interpreted Article 13 strictly: each criterion acts on a
cumulative basis, with each step constituting a separate and independent
requirement. As Article 13 begins with the criterion that the exceptions to the
copyright owner’s rights must be confined to ‘certain special cases’, the
overriding obligation imposed by TRIPS on member states must be to ensure that any
exceptions to the copyright owner’s rights are narrow in scope and clearly
defined – in short, no open-ended exceptions are permitted.
VIII. A
COMPROMISE SOLUTION?
Even if we were to
ignore all the arguments above and decide to keep the ‘life plus X years’
formulation, the length should still be shortened to the original Berne Convention duration. This is as
the recent extension to 70 years from 50 appears to have been made on dubious
grounds. Rather disturbingly, the 20 year extension was primarily driven by
administrative convenience rather than a rigorous assessment of whether the
extension was justified from the standpoint of the author or the public. As
observed by Dworkin, the main reason for the harmonisation of the copyright
term to 70 years from 50 years is that it was more “convenient to harmonise
upwards than downwards”. This was as the European Union (“EU”), a major
proponent of the TRIPS Agreement, feared that the process of making ‘70 year’
member states reduce their term to 50 years would have entailed too many
transitional provisions and would have set back the EU’s objective of creating
a single market by the dawn of the 21st century. It is thus submitted that the TRIPS copyright
extension was an act of a politician’s wants overruling the public’s needs
which cannot be justified.
IX. CONCLUSION
Gripes with copyright
have existed since the beginning of copyright itself. Achieving the right
balance has always been difficult and will continue to be so. It is however
worrying that the trend in the last 100 years is to blindly adhere to a mantra
of continuous extensions to the copyright term which is increasingly divorced
from the reality on the ground. Copyright holders are now akin to ‘dynastic kings’
who control a rapidly expanding domain of intellectual property that they can
pass down to multiple heirs before entering the commons. Unfortunately, the
great irony is that this system helps neither the author nor the public. We therefore
need to shake off our rose-tinted glasses and see the conventional narrative of
‘long copyrights equal great benefits to society’ for what it really is –
outdated and unsound reasoning. Ultimately, it is hoped that the points raised
in this short article can prod policymakers to pare back the unduly long
copyright duration to a more reasonable one that lasts no longer than the life
of the author.
