Copyright Act: How To Protect Your Work

Creative influences are inherent in all works, and that’s a good thing!

It’s a commonly accepted fact that many great creative works borrow references, influences, themes and visual aesthetics among others from each other. Think of the gritty rain-drenched streets of the future in ‘Blade Runner‘, and the influence its aesthetics had not only on contemporary science fiction, but even fashion! Even artists borrow and reinterpret classic works of art – for instance, local Singaporean artist Eugene Soh’s ‘Renaissance City’ exhibition in 2014 takes its references from a range of historical art styles.

But when it comes to copyrighted works, imitation is NOT the highest form of flattery!

In fact, plagarism and wholesale imitation of another person’s work are particularly frowned upon. Even top advertising agencies and brands are not immune to being called out for plagiarism – causing them to not only lose some major clients, but even dealing unnecessary damage to their reputation.

In some cases, even very close similarities between two works could be persecuted under copyright laws for infringement. A prime example of how close similarities in creative works could result in legal action is the 2015 lawsuit between the estate of the legendary Motown and Soul singer, Marvin Gaye, and the artists (Robin Thicke and Pharrell Williams) behind the pop song, “Blurred Lines”. At the heart of the dispute was whether or not the song, “Blurred Lines”, had copied elements of Marvin Gaye’s 1977 song, “Got to Give It Up” without permission. After a long legal battle, a jury decided that Robin Thicke and Pharrell Williams were guilty of committing copyright infringement, and awarded US$7.3 million to Mr Gaye’s estate – making it one of the largest sums in damages awarded in a music copyright case. However, the ruling immediately attracted controversy, with some critics arguing that the case was decided on the basis of an outdated interpretation of existing copyright law in America.

How do I know if my copyright has been infringed upon?

Under Singapore’s Copyright Act, a person may be considered as a copyright infringer if he/she performs any of the exclusive rights guaranteed to you under the Copyright Act without your knowledge, or explicit consent/license. This is also known as a primary infringement of your copyright. In the scenario that someone reproduces your copyrighted work without your consent, the courts will only consider it as a copyright infringement as long as a substantial amount of the original work was copied. In this context, a “substantial amount” is not necessarily measured in terms of the quantity that was copied, but also whether or not the copied portion is a key, or essential part of the work itself. If so, then the courts would consider that a substantial amount of the work was indeed copied.

However, the burden of proof demonstrating that primary infringement of the right to reproduction has been committed is placed on the plaintiff of the lawsuit. In this situation, the plaintiff must prove that the infringing act was done in Singapore and show that the defendant had copied a substantial part of the plaintiff’s work. If the plaintiff can further show that the defendant had access to the plaintiff’s work, there arises an inference of copying and the burden shifts to the defendant to rebut this inference.

Additionally, a person or another party may be considered as having secondary liability if the party commits indirect copyright infringement. Under Singapore law, there are two types of secondary liability:

1. Secondary infringement; and
2. Authorisation liability.

What is a “secondary infringement”?

A person or party can be considered as committing a secondary infringement of your copyright if they do any of the following acts:

Importing, selling, offering to sell, or publicly exhibiting any article that he/she knows, or is expect to know, that it is made without the copyright owner’s consent.

What is “authorisation liability”?

Authorisation liability occurs when a party authorises, grants, or claims that it can grant another party the right to commit a primary infringement. In general, the Singapore courts evaluate four factors in their totality in order to determine if authorisation liability was committed:

1. Did the alleged authoriser have the power to prevent such copyright infringement, such as having control over the means of committing the copyright infringement?
2. The nature of the relationship between the alleged authoriser and the person who committed the primary infringement;
3. Did the alleged authoriser take reasonable measures to prevent or avoid copyright infringement? And,
4. Did the alleged authoriser have actual or constructive knowledge that the copyright infringement had occured, or even had knowledge of the likelihood for such infringement to occur.

What can I do to stop my copyright from being infringed upon?

In such cases, you (as the copyright owner) may be able to launch copyright infringement proceedings against the infringing party. The types of remedies that the Singapore courts may order include the following:

1. Injunction;
2. Monetary award (damages including additional damages; account of profits; statutory damages in lieu of damages or an account of profits); and
3. An order for delivery up and disposal of the infringing copies.

Criminal proceedings may also be commenced against the infringing party. For instance, dealings in trading in infringing articles may give rise to criminal liability:

1. Making for sale or hire, selling the infringing copies: Liable on conviction to fine not exceeding S$100,000 and/or imprisonment for a term not exceeding 5 years.
2. Having in possession or importing into Singapore infringing copies for sale or commercial purposes: Liable on conviction to fine not exceeding S$100,000 and/or imprisonment for a term not exceeding 5 years.
3. Distributing infringing articles for purposes of trade: Liable on conviction to a fine not exceeding S$50,000 and/or imprisonment for a term not exceeding 3 years.
4. Performing a literary, dramatic or musical work, or causing cinematographic film to be screened in public (otherwise than by reception of a television broadcast or cable programme) for private profit: Liable on conviction to a fine not exceeding S$20,000 and/or imprisonment not exceeding 2 years.

In the case of primary infringement, if the act was wilfully carried out and it is significant in its scope and/or it was committed in order to gain a commercial advantage, then the offender would be liable to a fine of up to S$20,000, and/or imprisonment for a term not exceeding 6 months. Repeat offenders of primary infringement would face a maximum fine of S$50,000, and/or a jail term of up to 3 years.

In the case of secondary infringers, the penalties for such acts include fines of up to S$10,000 per article or S$50,000/S$100,000 (depending on the offence) in total (whichever is lower), and/or imprisonment for a term not exceeding 3 or 5 years. When dealing with offenders who deal with a large number of copyright infringing articles in an organised fashion as part of a syndicate (e.g. the infamous pirate VCD sellers back in the 1990s), the courts may have imposed both fines and custodial sentences on such offenders.

However, if you do not succeed in proving your claim that your copyright was infringed upon, you may find yourself liable to a counterclaim that you made groundless threats of copyright infringement, and you may face an injunction against the continuance of the threats, a court order for you to pay damages, and maybe a declaration from you that the threats are unjustifiable.

When is the latest I can still launch my lawsuit against the infringing party?

According to Section 142 of the Copyright Act, any action taken against a copyright infringement must be brought within six years from the time when the infringement allegedly took place.