The Singapore Law Gazette

“We Don’t Need Permission to Dance”: Key Features of the New Copyright Act 2021

Dance as a metaphor connotes relationships between control and experimentation, order and improvisation, purpose and play. The Copyright Bill 2021 which was passed in September 2021, and is expected to come into force before the end of the year, is carefully calibrated to balance between protecting rights owners and enabling others to have access to these works in order to create new ones. This commentary will focus on changes to fair use and the introduction of a text and data mining (TDM) exception.

Introduction

BTS – the K-Pop boy band global phenomenon – proclaims “we don’t need permission to dance” in one of the catchiest tunes of this decade. Dance as a metaphor evokes freedom, creativity, improvisation, beauty, emotion, and meaning. It also connotes relationships between control and experimentation, order and improvisation, focus and abandon, purpose and play, unity and diversity.

The Copyright Bill 2021 which was passed in September 2021, and is expected to come into force before the end of the year, is carefully calibrated to negotiate precisely those relationships between protecting rights owners and enabling the public and other users to have access to these works in order to create new ones. Significantly, by codifying an open-ended fair use provision akin to that in the United States, works protected by copyright – which include music, videos, images, lyrics – may just be more readily available for transformative repurposing on social media platforms such as TikTok, Instagram and Facebook.

The Singapore Copyright Act was first enacted in 1987 and was largely based on the copyright regimes of the United Kingdom and Australia at that time. Major revisions to the Copyright Act were made in 1998, 1999 and 2004, which ensured that Singapore’s copyright regime was aligned to international norms and bilateral treaties, and was relevant to content that was being created, distributed and consumed digitally. A significant public consultation exercise was carried out, which culminated in the introduction of a future-ready Copyright Bill 2021 in July of this year, which sought to replace the Copyright Act 1987 in its entirety. The new Act was passed by Parliament after its second reading on 13 September 2021.

This ambitious revamp with wide-ranging reforms included the introduction of the moral right of attribution (or right to be identified), the recognition of an open-ended fair use provision (modelled after 17 USC § 107), the inclusion of a computational data analysis exception, and a new class licensing scheme to regulate collective management organisations in Singapore.¹Copyright Bill 2021 (Bill No 17/2021) (available: https://sso.agc.gov.sg/Bills-Supp/17-2021/Published/20210706?DocDate=20210706).

This commentary will focus on changes to fair use and the introduction of a text and data mining (TDM) exception.²This commentary is adapted from a longer article: David Tan and Thomas Lee Chee Seng, ‘Copying Right in Copyright Law: Fair Use, Computational Data Analysis and the Personal Data Protection Act’ (2021) 33 Singapore Academy of Law Journal 1032 (available e-First: https://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal/e-First).

Fair Use and Computational Data Analysis Exception

Data analytics is an inevitable technological development of the 21st century, and more specifically predictive analytics can find patterns contained within data in order to detect risks and opportunities, and are applicable to a panoply of activities in the finance, healthcare, retailing, pharmaceuticals, automotive, aerospace and manufacturing industries. Predictive analytics – a category of data analytics – are increasingly used to obtain information from historical and current datasets using statistical modelling and machine learning techniques to forecast potential future findings and trends. The introduction of a computational data analysis exception (new sections 243-244) for TDM appears to be sensible and timely, but may in practice be superfluous in light of the open-ended fair use provision. Computational data analysis is defined under section 243(a) as the use of a computer program to “identify, extract and analyse information or data from the work” – which is synonymous with TDM – and crucially, miners must prove that they have lawful access to online works or data in order to qualify for protection under this provision. The UK has already in place a text and data mining exception – albeit narrower than the Singapore version – that “a person who has lawful access to the work may carry out a computational analysis of anything recorded in the work for the sole purpose of research for a non-commercial purpose”.³Copyright, Designs and Patents Act 1988 (UK) (c. 48) s 29A.

There are five conditions to be satisfied (new 244(2)). They include the user proving that the copy is made for the purpose of computational data analysis and not for any other purpose; the user not supplying the copy to any person other than for the purpose of verifying the results of the computational data analysis carried out by the user; and the user has lawful access to the material (the first copy) from which the copy is made; and that the first copy is not an infringing copy.

The clarification that permitted uses are not rights infringement is an important one (new section 183). In addition, the explicit recognition of an open-ended fair use approach (new section 190) akin to that in the United States allows the courts to better assess whether the panoply of technological and artistic uses, such as sharing on social media or the commercial production of satire and pastiche, are permitted uses. In Global Yellow Pages Pte Ltd v Promedia Directories Pte Ltd, the Court of Appeal had noted that in 2004, the scope of the current section 35 fair dealing provision may be interpreted to mean that a fair dealing for “any purpose” (as opposed to merely for “research or private study”) might be held not to amount to an infringement of copyright, and that “[t]his also made Singapore’s fair dealing provisions more similar to its American counterpart, which is more open-textured”.⁴Global Yellow Pages Pte Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (76).

Chief Justice Sundaresh Menon, in authoring the unanimous judgment, also hinted at the willingness of the local courts to take greater cognisance of US and Australian decisions in this area. The persuasiveness and relevance of US fair use decisions was similarly argued in earlier academic articles.⁵E.g. David Tan and Benjamin Foo, ‘The Unbearable Lightness of Fair Dealing: Towards an Autochthonous Approach in Singapore’ (2016) 28 SAcLJ 124. In the CA’s reference to Authors Guild v Google, decided by the US Second Circuit Court of Appeals, it noted that “it was a transformative use (and therefore fair dealing) for Google, a search engine operator, to digitise books and make them searchable (albeit limiting the portion of the search result that users could see) because this ‘augment[ed] public knowledge by making available information about [the plaintiffs’] books without providing the public with a substantial substitute for matter protected by [the plaintiffs’] copyright interests in the original works or derivatives of them’.”⁶Global Yellow Pages Pte Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (81). The CA also commented that “we do not go as far as those cases which suggest that a commercial nature or purpose of the dealing will presumptively be regarded as unfair”⁷Global Yellow Pages Pte Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (81). perhaps demonstrating a greater tolerance for commercial data mining activities.

No TDM case has been litigated in Singapore to date under the section 35(2) open-ended fair dealing exception. Although the new Copyright Act explicitly allows the fair use defence to be pleaded together with the computational data analysis exception, in practice, litigants may still inevitably find themselves having to choose only one due to the frequent incompatibility of both defences. The miner who seeks to justify that the TDM activity was “transformative” under the open-ended fair use defence, thus obviating the need to seek an ex ante licence, could potentially undermine its pleadings (in the alternative under the computational data analysis exception) that the miner had “lawful access” to the original material. Take for example, the creation of a search engine: works are likely to have been copied without lawful access in order to create a full-text searchable database, but this would nonetheless have been a highly transformative purpose.

In two complementary decisions, the US Second Circuit Court of Appeals found fair use, notwithstanding that the libraries had downloaded and stored complete digital copies of entire books, because such copying was essential to permit searchers to identify and locate the books in which words or phrases of interest to them appeared.⁸Authors Guild, Inc v Google, Inc, 804 F 3d 202, 216-217 (2nd Cir. 2015); Authors Guild, Inc v HathiTrust, 755 F 3d 87, 97-105 (2nd Cir. 2014). If similar facts were encountered in Singapore, as this is a TDM use, a miner in Singapore may find it difficult to successfully plead the computational data analysis exception, as there may not have been lawful access to all of the copyrighted works; the litigant appears to have a better chance of succeeding on fair use. However, in these paradigmatic cases, there is unequivocal benefit to the public at large. For instance, Google’s making of a digital copy of books was for the purpose of enabling a search for identification of books containing a term of interest to the searcher which further advances the pursuit of knowledge.⁹Authors Guild, Inc v Google, Inc, 804 F 3d 202, 216 (2nd Cir. 2015). On balance, it seems that a miner, even with fair use under the new sections 190-191 and a preponderance of US decisions in its favour, would have a difficult time showing that such unauthorised copying was fair if there was an overriding commercially motivated purpose and an absence of public benefit akin to the Google decisions.

Fair Use and Social Media

There have been a number of lawsuits in the US over the last five years by paparazzi photographers and media companies against celebrities and luxury fashion brands – e.g. Gigi Hadid, Jennifer Lopez, Ariana Grande, Justin Bieber and Versace – for the unauthorised reposting of photographs on their Instagram accounts.¹⁰Sarah Grossbart, “Why Do Celebrities Keep Getting Sued for Their Instagram Posts?” E! Online (2 October 2020) (available: https://www.eonline.com/news/1085568/why-do-celebrities-keep-getting-sued-for-their-instagram-posts). However, all of them have been settled out of court. This form of copyright trolling has been frowned upon by many netizens, where it appears to be acceptable social media behaviour to repost photographs with a number of hashtags. The digital culture has led to a pronounced focus on the production of the self or an online persona; whether through Facebook, Instagram, LinkedIn, Twitter or Pinterest, billions of individuals worldwide are constantly making and remaking public versions of themselves for myriad purposes and monitoring these profiles daily.¹¹P David Marshall, The Celebrity Persona Pandemic (University of Minnesota Press, 2016) at p 39.

Individuals today are using a combination of images, videos, text, handles and hashtags on social media to construct their online identities. Images posted or circulated on social media have arguably the same purpose as the “social photograph” in the manner contemplated by Nathan Jurgenson where the image object itself is less its own end but a means of communicating an experience.¹²Nathan Jurgenson, The Social Photo: On Photography and Social Media (Verso, 2019) at pp 16–17. The posting of selfies, social photographs and memes all form “part of an ongoing communication of who you are, what you are experiencing, the simple fact that you exist and are live doing things”.¹³Nathan Jurgenson, The Social Photo: On Photography and Social Media (Verso, 2019) at p 16. These images arguably transcend their original purpose in social media postings as they are utilised as raw materials and repurposed for their semiotic values in this serialised construction of the online public personae.¹⁴See generally David Tan and Angus Wilson, “Copyright Fair Use and the Digital Carnivalesque: Towards a New Lexicon of Transformative Internet Memes” (2021) 31 Fordham Intellectual Property, Media & Entertainment Law Journal 864.

In 2019, the US Fourth Circuit Court of Appeals appears to be receptive to fair use arguments in a future case when it made a cryptic comment that: “Many social media platforms like Twitter, Facebook, and Instagram are specifically designed for the participatory ‘sharing’ – or copying – of content. We express no opinion as to whether such sharing constitutes fair use.”¹⁵Brammer v Violent Hues Productions LLC 922 F 3d 255 at 269 (4th Cir. 2019). The Court commented that the defendant in posting a photograph on its website to promote a film festival, had failed to comment on the original photograph, “remix” the photograph, or otherwise engage with the photograph in a way that might stimulate new insights.¹⁶Brammer v Violent Hues Productions LLC 922 F 3d 255 at 269 (4th Cir. 2019). Implicitly, it would seem that if an individual had engaged in any one of these uses on social media, it could have been fair use. Earlier in 2015, Stephanie Lenz challenged the removal by YouTube of her 29-second home video of her two young children in the family kitchen dancing to the song “Let’s Go Crazy” by Prince which Universal alleged constituted an infringing use and had filed a takedown notification. The Ninth Circuit held that copyright holders had to consider whether the potentially infringing material is a fair use of a copyright under 17 USC §107 before issuing a takedown notification,¹⁷Lenz v Universal Music Corp 801 F 3d 1126 at 1131–1132 (9th Cir. 2015). but did not pass judgment whether the home video was indeed fair use as a matter of law. The court noted: “Fair use is not just excused by the law, it is wholly authorized by the law.”¹⁸Lenz v Universal Music Corp 801 F 3d 1126 at 1132 (9th Cir. 2015).

Social media today invariably enable and encourage the creation of individuated online identities through repetition, reproduction and remixing. Images, videos, music and text created by other authors are frequently used for the purpose of creating, maintaining and remaking of a digital public persona. They should generally qualify as highly transformative secondary uses that repurpose copyrighted works in a digital medium for individual social media accounts in an atmosphere of carnivalesque frivolity. Seriously, do we really need permission to dance?