Written by Ashley Ho | Edited by Josh Lee Kok Thong
We’re all law and tech scholars now, says every law and tech sceptic. That is only half-right. Law and technology is about law, but it is also about technology. This is not obvious in many so-called law and technology pieces which tend to focus exclusively on the law. No doubt this draws on what Judge Easterbrook famously said about three decades ago, to paraphrase: “lawyers will never fully understand tech so we might as well not try”.
In open defiance of this narrative, LawTech.Asia is proud to announce a collaboration with the Singapore Management University Yong Pung How School of Law’s LAW4032 Law and Technology class. This collaborative special series is a collection featuring selected essays from students of the class. Ranging across a broad range of technology law and policy topics, the collaboration is aimed at encouraging law students to think about where the law is and what it should be vis-a-vis technology.
This piece, written by Ashley Ho, critically examines Singapore’s new Copyright Act. Though it acknowledges the Act’s attempt in striving for a balance of interests between creators and the general public, it posits that ultimately this attempt falls short of the goal. Firstly, this paper argues that there is a need to re-examine the purpose of copyright law in the context of the digital space. This is to be done by questioning whether the justifications behind copyright protection still apply or whether they have become irrelevant in this new digital world. If the answer is the latter, then there is a need to recalibrate this balance of interests.
As a caveat, this paper does not go so far as to suggest a complete revocation of copyright protection. Instead, it simply suggests for the inclusion of a non-commercial user exception, such as that under Canadian law, to make it a permitted use for users on social media to utilize other users’ content. This exception provides greater certainty than the recently added defence of fair use and aligns with the Legislature’s intent on encouraging the production of creative works. Crucially, the key idea that this paper puts forth is that social media operates and thrives on the free value of content, and this norm of the new world ought not to be governed by old rules which no longer hold the same relevance.
Introduction
In November 2021, Singapore passed its new Copyright Act.[1] This was a long-awaited move given that the pre-existing Copyright Act was first introduced in 1987. After three decades, social behaviour has evolved and new technologies has sprung forth. The Copyright Act, archaic in form and borne out of a social order much different from today, struggled to maintain its relevance in the face of issues it was never equipped to face with.[2] It is therefore with much fervour and anticipation that the new Act is met.
That said, the tone of this paper is less optimistic. In the face of new social behaviours perpetuated by today’s tools of technology, the desirability of the amended act is doubtful. With a specific focus on social media platforms, this paper posits that even with the new changes, Singapore’s copyright regime remains skewed in favour of creators and fails to achieve the optimal balance between creators’ interest on one hand and the public’s on the other. In this premise, the writer argues for the inclusion of a non-commercial user generated content exception.
For this paper, “digital world” or “cyberspace”, though broad concepts, shall be narrowed down in meaning to refer to social media platforms. This paper is divided into seven sections. Part I is the introduction. Part II comprises a general analysis of the dynamics between law and technology. Part III argues that the justifications for copyright protection are inapplicable in the digital space. Part IV briefly lays out the relevant changes to the Copyright Act, focusing on the fair use defence, while Part V explains why this change is insufficient to achieve the goal of striking a balance of interests. Lastly, Part VI argues for the need to introduce a user right exception on the basis of the different architecture on which the digital world is premised upon. Part VII concludes.
The challenges that arise from technology will prove varied, controversial, and multifaceted. To fully understand and address them, we will need to go far beyond the law and the courts.
Sundaresh menon, chief justice of singapore, korea-Singapore Legal Technology Seminar (19 October 2020)
Dynamics between law and technology
We start with an examination of the relationship between law and technology to set the backdrop for later arguments. The big question to be answered here is what the role of the law is – is the law meant to be this golden unchanging standard by which all future behaviours are to be judged upon, or is law meant to be responsive to changing social mores? Judge Easterbrook, in taking the former stance, argued that adopting a new law for cyberspace disregards the “unifying principles” that law already provides and that cyberlaw is no more than a “law of the horse”.[3]
This paper however takes an opposing stance and agrees instead with Lawrence Lessig that cyberspace is a domain of its own with constraints and architecture vastly different from that of real space,[4] and in no way can a law regulating such a space be said to be a mere law of the horse. In terms of governing this new space, the question then is how we should determine the point at which a certain behaviour crosses the line and goes from being classified as a mere exception to being accepted as the new norm. If the rate of copying increases dramatically, does this mean that society is becoming more deviant or is this simply an indicator of a new social norm which the law has to come to terms with? Should the law react more harshly as deterrence or should it change to become more accommodating of this new behaviour?[5] Our answers here would depend on whether we view the act of copying as something worth condemning. Importantly, this has to be examined in the context of norms in cyberspace and not in the real world.[6]
Unfortunately, this question is often left unexplored.[7] Despite the volume of papers written on the interplay between social media and copyright, the majority of these begin with the skewed view of social media as a threat to copyright. This premise itself presumes that copyright protection is something desirable and sought after. But is this really the case where cyberspace is concerned?
Do rules of the old world have a place in governing the new world?
To start, this paper posits that the justifications for copyright protection stem from concerns which are largely faced only in the real space. Where these concerns are irrelevant in the digital sphere, there is no real basis in insisting on having the same rules apply in what is essentially a different world altogether.
Reduced relevance of justifications for copyright protection
The justifications for copyright protection stem from two schools of thought. On one hand, the utilitarians argue that such rights are needed to allow creators to recoup their investments in costs, time, and effort, which thereby encourages more works and in turn benefits society who gets to enjoy the creations.[8] On the other, the moralists argue that creators have natural rights over their creations and thus it is only fair that a creator reaps the rewards of his or her own work.[9]However, sound as these justifications may be, they are ultimately based on premises that largely apply only in real space and not in cyberspace.[10]
Today, social media enables anyone to freely create and publish any work without the need of a publisher or an advertiser. With such a drastic reduction in costs and an increase in ease of creating, it is questionable if copyright protection is even needed to incentivize the creation of work. Indeed, the new currency of incentive appears to be fame and this is generally achieved by way of frequent creation of content.[11]
The moralists’ rights-based theory may also be challenged on the ground that with inspiration and information so abundant that even ‘unsearching’ ones are unwitting receivers of this wealth of data, it is doubtful whether any work created in the present digital era can be said to be wholly credited to its creator alone.[12] As Lessig rightly describes, “creation is always the building upon something else. There is no art that doesn’t reuse”.[13] Keeping in mind that times have changed, it begs the question of why the insistence on ascribing to and maintaining the same level of moral justification for copyright protection today as for a world that existed pre-communication technology. Instead of worrying about the “social consequences of the Internet”, it is due time to focus on the “Internet consequences of society”.[14]
Social media is a world of its own
At a more abstract level, aside from the justifications no longer having the same relevance, there is also no basis in relying on the old rules because the game is materially different.[15] Unlike its technological predecessors, such as the photocopier and tape recorder which are mere tools that operate in the same world, social media has long passed that initial stage and is now arguably a world of its own.
For clarity, the writer assigns three defining features to what she considers would qualify as a distinct ‘world’.[16]First, it ought to substantially differ from the real space, in terms of appearances, functions, or social behaviour. Second, it has to contain a complex set of rules that are generally followed by and understood by those within the space. Third, it should attract a sizable crowd. Social media satisfies all three. Its digital architecture is so vastly different from real space that there are classes specialized in teaching people how to use social media. Even then, its social rules are so pronounced yet complex and implicit that it essentially “gatekeeps” these platforms from non-frequent users. And as of 2020, social media has a teeming population of over 2.89 billion active worldwide users.[17]
On these bases, this paper argues that the rules of the real space have little place in governing the norms of this different world.
Changes to Singapore’s Copyright Act
The new Copyright Act is said to be a major overhaul of its predecessor, with many changes having been made.[18] This paper focuses on two.
First, under the new Act,[19] an author of a dramatic or literary work now has the right to be identified with his work where previously he had only the right to prevent false identification.[20] Significantly, the introduction of this moral right that stems from the philosophy of a creation being an extension of the author’s personality,[21] may be an indicator of a fundamental shift in Singapore’s utilitarian approach towards intellectual property protection.[22]
Second, as an attempt at maintaining the balance of interests between creators and the general public, the defence of fair dealing has been broadened to that of fair use.[23] In theory, this appears to be a significant shift as fair use is treated as a much more flexible and discretionary-based defence by American courts than fair dealing is by English courts. Under the latter approach, a dealing must fall within one of the permitted uses[24] whereas under the fair use doctrine, “courts [are] free to adapt [it] to particular situations on a case-by-case basis”.[25] In practice however, even before this amendment, Singapore has adopted a stance similar to that of fair use.[26] Thus, the extent of change is not as great as what is to be theoretically expected. Nonetheless, this change is desirable insofar as it accords greater room for the law to accommodate uses beyond that anticipated by Legislature and this is the kind of flexibility that fast-changing technology demands.[27] That being the case, a trade-off in the form of uncertainty is inevitable[28] and it is argued that this uncertainty in the use of this defence is in part the reason for this imbalance in interests between creators and the public.
Balance of interests cannot be achieved under the new Copyright Act
Overprotection of creators
As mentioned, since the justifications for copyright protection are less applicable in the digital space, it would be more than sufficient to accord creators the right to be identified. Arguably, the existence of copied material together with an attribution brings more benefit to the creator. On many platforms, it is not unusual to come across a creator hosting “giveaways” with the requirement that interested users are to post the creator’s photos on their individual accounts.[29]Copying in this sense generates greater publicity for the creator and is treated as not just a positive practice, but in fact one which creators themselves actively seek to encourage.[30] Therefore, so long as creators are rightly attributed, it should be permissible for other users to use the material. To accord creators in the digital space with rights beyond that would be unduly depriving the public domain.
It is especially important that the scope of protection for creators is not overly broad given the low threshold needed to be satisfied for copyright to subsist. Indeed, under the requirement of originality, the work need not be novel, unique or inventive.[31] Instead, all that needs to be shown is that the author himself created it and that he had expended intellectual effort in its creation.[32] This serves to bar only slavish copies that are the mere result of the manual effort of copying.[33] In fact, the Singapore courts have taken the concept of originality as such a broad one that extends beyond “creativity or artistic quality” such that even compilations of purely factual works[34] satisfy this requirement. Further, simplicity per se is also not a bar to finding originality.[35] The implication is that seemingly banal material like a tweet or an Instagram caption can be accorded copyright protection and this is a protection that lasts for the lifetime of the author and seventy years after.[36] Potentially, this opens the floor to a flood of litigation.
Though the courts have tried to mitigate this situation by holding that protection for such works is a thin one,[37]this is not a desirable solution. Allowing copyright to subsist in the first place and overcoming this ‘over-expansion’ by making an infringement claim more difficult to be made out, needlessly encourages litigation and creates uncertainty.[38]If copyright is likely to be found to subsist, the general public, out of fear of being sued, may change their behavior even if infringement would not actually have been made out.[39] This change in behavior, in terms of a lower volume and vibrancy of sharing, is undesirable to society as a whole.
Lack of certainty for users
Exceptions and defences play a vital role in maintaining the equilibrium of interests by carving out room for permissible uses of copyright material that would otherwise constitute infringement.[40] For platform users however, the lack of a specific exception means that they have to rely on the general defence of fair use and one issue with this lies in the uncertainty of the scope of this defence.[41] Given its discretionary-based nature and a lack of ex-ante guidance, users cannot be sure of the degree to which a work has to be edited before it can constitute fair use and many online creations such as memes and stitches[42] fall within this grey area.
This results in what Walker terms as “false positives”, where creators erroneously exert their rights in a work beyond the bounds of what is actually protected.[43] And because platforms fear liability, they have taken it in their own hands to take down posts which have been flagged out to be a copyright infringement.[44] What this means is that though users now have recourse to a broader defence, its unpredictability in terms of its heavy dependence on an ex-post enquiry, means that users have no strong argument to make in resisting a take-down that occurs prior to any court involvement. This could potentially have a “chilling effect” on the overall socio-digital landscape where users avoid the risk of liability by refraining altogether from use of others’ works.[45] This goes against the very goal of copyright law[46] and in the long run, as the spread of creativity and knowledge becomes increasingly stifled, this pursuit of incentivizing greater creations by way of protection may ironically achieve the very converse effect.[47]
Suggestion: User exception
Case example: Canada
In light of the potential hindrance of works in the public domain, this paper proposes an inclusion of a user exception. Under Canadian copyright law, the non-commercial user-generated content exception permits individual users to use existing work in the creation of a new work for non-commercial purposes, subject to the following conditions.[48]First, the user must have identified the source, second, have reasonable ground to believe that the existing work was not infringing copyright, and third, the use of the new work must not have a substantial adverse effect on the market of the existing work.[49] Where these conditions are satisfied, a user’s post will not constitute an infringement of copyright.[50]
Although some of these terms (such as “substantial adverse effect”) lack statutory definition, it is argued that the exception as a whole still provides more certainty[51] than the open-ended and discretionary-based fair use provision.[52]Whilst the latter (in s 191 of Singapore’s Copyright Act 2021) does not even contain an exhaustive list of all the factors which the court may consider in deciding if a work is fairly used, the Canadian exception provides ex-ante guidance in the form of a closed list of conditions that users have to satisfy in order to use an existing work without infringing copyright. Further, as held by the Supreme Court of Canada in CCH Canadian Ltd v Law Society of Upper Canada, user rights copyright exceptions are not to be “interpreted restrictively” as they are necessary to “maintain the proper balance between the rights of a copyright owner and users’ interests”.[53]
With Canada and Singapore both being parties[54] to the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”)[55] and WIPO Copyright Treaty (“WCT“)[56] which recognises “the need to maintain a balance between the rights of authors and the larger public interests”,[57] there is room to argue that Singapore should follow suit in adopting this exception. Doing so not only provides the certainty which fair use lacks[58] but also aligns with the Legislature’s intent on encouraging the production of creative works.[59]
This paper focuses on two further arguments in support of this specific exception: firstly, as previously covered, the justifications for copyright protection largely do not apply in cyberspace. Secondly, content generated by other users is a key part of this digital world.
New lens: Users as part of the creative exchange
If one were to put on a pair of new lenses and truly appreciate the underworking of this new creative ecosystem, the understanding for a need of a user exception is almost intuitive.
In the world which copyright laws are based upon, books are published and readers simply read, just as artworks are created and museum-goers simply see. The lack of any real symbiosis between the two parties easily leads to the categorization of non-creators as mere receivers. Thus, where the receiver absconds payment or gratitude in other kinds, he is but a leech that sucks on the blood of creators who pour their souls into their creations – this is the perception that drives the protective instinct over creators.[60] And this makes sense. But only in the real world.
Cyberspace is a world with a revolutionized culture of sharing and never before, has the public domain thrived at this level of vibrancy and veracity. As opposed to a passive giver-recipient relationship, it is a flourishing ecosystem of reciprocity where users too constitute an input in the creative process[61] and are very much a giver as they are a taker. This level of co-dependency on which the very foundation of cyberspace is premised therefore warrants its own system of economics where resources are not scare and where value is created from free rather than controlled data.[62] Indeed, “even if the control model makes perfect sense in the world of things, the world of things is not the digital world”.[63]Thus, instead of grappling with box-fitting the new foreign into the old familiar, we need to come to terms with the fact that the rules of the past, effective and reliable as they may have been, can no longer be the working solution when the assumptions behind these rules cease to be relevant.
Conclusion
As the Legislature has acknowledged, overprotection of intellectual property is undesirable for too strong a monopoly deters creation by others and limits the pool of creative works for the enjoyment and progress of the whole of society.[64] Although an attempt has been made to strike a balance between the interests of creators and the general public through the introduction of the fair use doctrine in the newly-passed Copyright Act,[65] the uncertainty that it bears severely impedes its efficacy as a mechanism to safeguard the creation of works in the public domain. It is on this premise that this paper suggests an inclusion of a user exception and justifies this on the basis that rules borne out of the old order should have no place in governing the new digital world.
This piece was published as part of LawTech.Asia’s collaboration with the LAW4032 Law and Technology module of the Singapore Management University’s Yong Pung How School of Law. The views articulated herein belong solely to the original author, and should not be attributed to LawTech.Asia or any other entity.
[1] Copyright Act 2021 (No. 22 of 2021)
[2] Gavin Foo, “Singapore’s Biggest Copyright Reform in 30 Years” (World Intellectual Property Organization Magazine, 2016).
[3] Frank Easterbrook, “Cyberspace and the Law of the Horse” (University of Chicago, 1996) at 207.
[4] Lawrence Lessig, “The Law of the Horse: What Cyberlaw Might Teach” (Harvard Law Review, 1999) at 4-6.
[5] Alicia Solow-Niederman, “Emerging Digital Technology and the “Law of the Horse” (UCLA Law Review, 2019) at 2.
[6] Lessig, “Law Regulating Code Regulating Law” (Loyola University Chicago Law Journal, 2003) at 4.
[7] Lyria Bennett Moses, “How to Think about Law, Regulation and Technology” (UNSW, 2013) at 14.
[8] Stephanie Bair, “Rational Faith: The Utility of Fairness in Copyright” (Boston University Law Review, 2017) at 1492.
[9] Id, at 1495.
[10] Eric Johnson, “Intellectual Property and the Incentive Fallacy” (Florida State University Law Review, 2012) at 649.
[11] Neil Patel, “How Frequently You Should Post on Social Media” (September 2016) < https://www.forbes.com/sites/neilpatel/2016/09/12/how-frequently-you-should-post-on-social-media-according-to-the-pros/?sh=2b97025e240f>
[12] National Research Council, Copyright in the Digital Era (National Academies Press. 2013) at 16.
[13] Lawrence Lessig, The Future of Ideas (Random House, 2001) at 249.
[14] Michael Lewis, Next: The Future Just Happened (Norton & Co, 2001)
[15] See also O’Rourke, “Property Rights and Competition on the Internet: In Search of An Appropriate Analogy” (Berkeley Technology Law Journal, 2001) at 561: “rather than searching for analogies, courts and legislators could more profitably devote their energies to understanding how the Internet differs from physical space, evaluating whether those differences call for new legal rules…”
[16] On a related note, Ryan Calo notes three hallmarks of the Internet, viz the flow of information (connection), its capability of generating shared objects and spaces (collaboration) and its many forms of observation and manipulation (control). Ryan Calo, “Robotics and the Lessons of Cyberlaw” (California Law Review, 2105) at 519.
[17] The London School of Economics and Political Science, “Social Media Platforms and Demographics” <https://info.lse.ac.uk/staff/divisions/communications-division/digital-communications-team/assets/documents/guides/A-Guide-To-Social-Media-Platforms-and-Demographics.pdf>
[18] Legislative Changes to Strengthen Singapore’s Copyright Regime, Ministry of Law (2021)
[19] Copyright Act 2021 (No.22 of 2021) s 371.
[20] Copyright Act 1987 ss 188, 189 and 190.
[21] Bair, supra n 9.
[22] David Tan, “The Transformative Use Doctrine and Fair Dealing in Singapore” (Singapore Academy of Law Journal, 2012) at 31.
[23] Martin Brenncke, “Is “Fair Use” an Option for U.K. Copyright Legislation?” in Transnational Economic Law (2007) at 7.
[24] Beloff v Pressdram (1973) 1 A11 ER 241 (262)
[25] Sony Corp of America v Universal City Studios Inc 1984 2 IPR 225 (245) (SC(USA))
[26] The open-ended nature of the Singapore exception is more akin to the notion of “fair use” – given these similarities with “fair use”, the exception should be more accurately called “fair use”. Singapore Copyright Review Report (Jan 2019) Ministry of Law IPOS at 27.
[27] Brenncke, supra n 24, at 12.
[28] Ibid.
[29] Christian Hughes, “Driving Brand Engagement” in Journal of Marketing (2019) at 82.
[30] Ibid.
[31] Auvi v Seah Siew Tee [1991] 2 SLR 786 at [32].
[32] Global Yellow Pages v Promedia Directories [2017] 2 SLR 185 at [24].
[33] Ng-Loy Wee Loon, Law of Intellectual Property in Singapore (Thomson Reuters, 2014) at 155.
[34] Ibid.
[35] Auvi, supra n 32.
[36] Copyright Act 2021 s 114.
[37] Global Yellow Pages Ltd v Promedia Directories Pte Ltd [2017] 2 SLR 185 at [87].
[38] Niva Elkin-Koren, “Affordances of Freedom: Theorizing the Rights of Users in the Digital Era” (Jerusalem Review of Legal Studies, 2012) at 15.
[39] Ibid.
[40] David, supra n 23, at 834.
[41] Niva, supra n 39.
[42] Tiktok stitches allow users to combine videos of other users with their own.
[43] Ben Depoorter & Robert Walker, “Copyright False Positives” (Notre Dame Law Review, 2013) at 321.
[44] Pascale Chapdelaine, “Copyright User Rights and Remedies: An Access to Justice Perspective” (MPDI, 2018) at 18.
[45] Glynn Lunney, “Fair Use and Market Failure: Sony Revisited” (Boston University Law Review, 2002) at 988-91.
[46] Ibid.
[47] Niva Elkin-Koren & Orit Fischman-Afori, “Taking Users’ Rights to the Next Level” at 8.
[48] Canadian Copyright Act (R.S.C., 1985, C-42) s 29.21
[49] Ibid.
[50] Ibid.
[51] Niva Elkin-Koren, Copyright in a Digital Ecosystem (Cambridge University Press, 2017) at 150.
[52] Singapore Copyright Act 2021 (No. 22 of 2021) s 191.
[53] CCH Canadian Ltd v Law Society of Upper Canada [2004] 1 SCR 339 at [48].
[54] See Saleh Al-Sharieh, “Securing the Future of Copyright Users’ Rights in Canada” (Windsor Yearbook on Access to Justice, 2018) at 17.
[55] Agreement on Trade-Related Aspects of Intellectual Property Rights, Marrakesh Agreement Establishing the World Trade Organization (15 April 1994) Annex 1C, 1869 UNTS 299, 33 ILM 1197 (“TRIPS“)
[56] WIPO Copyright Treaty (20 December 1996, 36 ILM 65 (“WCT”)
[57] Ibid.
[58] Niva supra n 52.
[59] Singapore Parliamentary Debates, Official Report (13 September 2021) vol 95 (Edwin Tong Chun Fai, Second Minister for Law)
[60] Id, at 132.
[61] Id, at 147.
[62] Lawrence Lessig, The Future of Ideas (Random House, 2001) at 15.
[63] Id, at 115.
[64] Singapore Parliamentary Debates, Official Report (2021) vol 95 (Edwin Tong, Second Minister for Law)
[65] Ibid.