S Jayakumar
Singapore
“It is well and good for countries to announce various targets and emissions. But one vexing issue ultimately is: what will be the method for verifying compliance with each country's announced measures? Another vexing issue, of course, is the issue of financing.”
“I would appreciate it if she were to give me some specifics of the negative feedback. But the general feedback I have had about our judiciary, both of the Supreme Court and the Subordinate Courts, has been nothing but positive.”
“Mr Speaker, Sir, the information that I have is that there is always medical advice present when caning is administered and that if the medical opinion is that caning cannot proceed beyond a certain point, that medical opinion will be observed and the caning will not proceed.”
“Mr Liang Eng Hwa asked the Minister for Transport in view of the recent announcement to make immediate improvements to the public transport system (a) whether the Ministry has set a timeline for the increase in frequency of feeder bus services; and (b) whether the Ministry can immediately target such services that are currently running at…”
“SCDF will continue to work with HDB and other relevant agencies to ensure that such older buildings with one exit staircase meet the prevailing fire safety requirements when they undergo major renovation or upgrading works. CIVIL SERVICE PENSIONERS 3.”
“The Parliamentary Secretary to the Minister for Community Development, Youth and Sports (Mr Teo Ser Luck) (for the Minister for Community Development, Youth and Sports): Mr Speaker, Sir, with your permission, I would like to take Mrs Jessie Phua's and Dr Lim Wee Kiak's questions together as they both relate to the same issues.”
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“Mr Speaker, Sir, let me first reiterate that under our laws no one will be criminally culpable for his actions if his mental capacity is so limited that he did not understand the nature of the act, or what he was doing was wrong. This is an important principle under our legal system. Therefore, those who are charged for an offence are those who knew the nature of their actions and who could appreciate that it was wrong to do what they did. Where appropriate, accused persons with low intelligence, before being charged and before trial, go through a psychological assessment during the investigation stage. Investigating officers are mindful of their special needs, for example, in interviewing them. When investigations are completed, the Public Prosecutor will carefully consider the relevant facts before proceeding. The mental capacities of those with low intelligence are therefore considered well before the trial. After the trial has ended and if there is a conviction, when it comes to sentencing, the Judge will consider all relevant factors in deciding on the appropriate sentence. The extent to which the factor of low intelligence will be taken into account will vary according to the circumstances of the individual case. As the Member knows, there are many relevant considerations which the Court will have to consider to be relevant in deciding the appropriate sentence in each case. For example, if an offender repeatedly commits an offence knowing full well that what he did is wrong and knowing the gravity of his conduct, the Judge may well decide that it is appropriate to give a deterrent sentence and may not give great weight to the mitigation argument based on the factor of low intelligence.”
“Question put, and agreed to. Bill accordingly read a Second time and committed to a Committee of the whole House. The House immediately resolved itself into a Committee on the Bill. - [Prof. S Jayakumar]. Bill considered in Committee; reported without amendment; read a Third time and passed. TOWN COUNCILS (AMENDMENT) BILL Order for Second Reading read.”
“Just to conclude on NSP provisions, these provisions do not mean that an NSP is automatically liable for copyright infringement and monetary relief payable to copyright owners if it chooses not to meet the conditions to qualify for limited liability. Where the conditions are not met, the NSP's liability will simply be governed by the general provisions of the Copyright Act. This position does not change with this latest round of amendments to the NSP provisions. Overall, the amendments provide a better balance between the interests of NSPs, website owners and copyright owners. Rights management information and circumvention of technological measures Next, let me turn to rights management information and circumvention of technological measures. Members would recall that the previous amendment to the Copyright Act criminalised certain prohibited acts in relation to rights management information and the circumvention of technological measures, if they are committed wilfully and for the purpose of obtaining a "commercial advantage". Sir, clauses 16 and 17 amend the relevant sections 260 and 261C to expand the scope of criminal provisions to include acts wilfully committed for "private financial gain". Let me explain that this is necessary because in this digital age, it is possible for a person to potentially cause as much harm for private financial gain as for commercial purposes. The courts will determine on the facts of each case whether the act was committed for "private financial gain". Conclusion To conclude, Sir, these amendments, most of which are fairly technical, are important, and will fine-tune and enhance our copyright regime and provide a better balance between the interests of end-users, NSPs and copyright owners. Sir, I beg to move.”
“As Members may recall, the take-down and restoration procedure for NSPs provides that when an NSP receives a take-down notice from or authorised by a copyright owner relating to any material on a website, it will remove or disable access to the material if the material is on a website hosted on its network, or disable access to the material if the material is on a website hosted on another network. If the person who made available the material on the website disagrees, he can in turn file a counter-notice to have the material or access restored. If the copyright owner wishes to stop the restoration, he can institute court proceedings and inform the NSP of these proceedings before the material or access is restored. If no such action is taken, the NSP will proceed to restore the material or access. Mr Speaker, Sir, the current provision does not specify the exact window within which the copyright owner must take legal action to stop the material or access from being restored, or exactly when the NSP should restore the material or access. Clauses 8(a) and 13(a) amend sections 193DA(2) and 252CA(2), respectively, to provide for specific time periods within which these actions must be undertaken by the relevant parties. Specific time periods will give certainty to all relevant parties of the expected actions on their part. Sir, the amendments also provide that if the material was removed, or access to the material was disabled, in reliance on a take-down notice, the NSP must give a copy of the counter-notice to the copyright owner (or his representative) who furnishes the take-down notice, unless prohibited by privacy or data protection laws. The particulars on the counter-notice may assist the copyright owner in determining his next course of action.”
“NSPs are also not obliged to gain access to, remove or disable access to online material where such conduct is prohibited by law. Liability for authorising infringement Next, I turn to NSP liability for authorising infringement. Sir, under our copyright framework, a person who "authorises" copyright infringement by the provision of facilities may, under certain circumstances, be liable to legal action. An NSP, by the nature of its business, may thus fall into this category. Sir, in order to ensure that NSPs are not subject to unreasonable accusations of authorisation liability, sections 193DA(5) and 252CA(5) of the existing Copyright Act provide that an NSP cannot be treated as having authorised an infringement simply because it has done one of three enumerated acts. These are, firstly, that the NSP has provided a facility that was used by another person to carry out the infringing activity; secondly, that the NSP has received a notice informing it of the infringing activity; and, thirdly, that the NSP has acquired any knowledge of the infringing activity. Clauses 8(c) and 13(c) amend section 193DA(5) and 252CA(5), respectively, to allay concerns raised by copyright owners that the current wording might be misconstrued as immunising an NSP against authorisation liability even in a clear case involving such liability. The question of an NSP being liable for authorising infringement will continue to be left to the Courts to decide, based on the facts of each case. Restoration of online material Let me now turn to the restoration of online material.”
“Therefore, clauses 7 and 12 amend sections 193D(6) and 252C(6) to replace the two conditions with factors which the courts can now consider in determining whether a financial benefit is directly attributable to an infringement. These factors are: firstly, the industry practices in relation to the charging of services by NSPs; secondly, whether the financial benefit was greater than the benefit that would usually result from charging in accordance with accepted industry practices; and finally, all other matters that the court considers relevant. This change gives our courts a wider discretion in determining whether, on the facts of any particular case, an NSP should enjoy limited liability and would allow new developments, and innovative services and pricing policies, to be taken into account. Overall, we believe the amendments will provide a better balance of interests between copyright owners, NSPs and subscribers. Mr Speaker, Sir, NSPs have expressed concerns that, in order to avoid or limit liability, they may, as a result of the amendments, be compelled to police their networks for infringing materials to ensure that they are not receiving financial benefit that involves infringing activities. This is because not having knowledge of infringing material will no longer automatically exempt NSPs from being considered to have received a financial benefit. Such policing could result in an undue burden for NSPs. To address this concern, clauses 5 and 14 provide for the new sections 193A(3) and 252CF(2), respectively, which clarify, for avoidance of doubt, that NSPs do not need to monitor their services nor affirmatively seek facts indicating infringing activity.”
“Currently, there are two conditions which must be satisfied before an NSP which is not an individual will be treated as having any knowledge. First, the actual or constructive knowledge must be acquired by a representative designated by the NSP to receive take-down notices from copyright owners. Second, any communication conveying such knowledge to the designated representative must be in the form of a prescribed notice. Sir, we intend to strike a better balance between the interests of NSPs and copyright owners, and therefore, clause 7 and clause 12 amend section 193D(2), (3) and (5) and section 252C(2), (3) and (5), respectively, to do away with the condition that the actual or constructive knowledge must be acquired by a designated representative, and to allow the notice to be substantially in accordance with the prescribed form, without the necessity for strict conformance. Financial benefit I turn to the other condition for an NSP to qualify for limited liability which is, that it must not receive any financial benefit directly attributable to the infringement. Sir, the Copyright Act currently sets out the conditions that determine if an NSP has received financial benefit. First, financial benefit does not include any benefit the NSP receives merely for providing online services. Second, financial benefit can only be said to be linked directly to the infringing activity if the NSP knew at the time it received the benefit that copyright infringement was involved. However, Sir, NSPs may be able to profit from infringing activity while still enjoying limited liability.”
“These copies are made automatically, and involve no direct action by the user. As such, the user should not be held liable for any copyright infringement occurring under such circumstances. Therefore, the existing Copyright Act exempts the making of such incidental copies from copyright infringement. Clauses 2, 4, 9 and 15 of the Bill amend sections 38A, 107E, 193E and 252D respectively to clarify, for avoidance of doubt, that the exemption only applies to short-lived incidental copies, and not to long-lasting copies even if they are made automatically. Mr Speaker, Sir, clauses 2 and 4 of the Bill also stipulate that the exemptions under sections 38A and 107E do not apply if the material or the communication itself is infringing. In addition, these provisions do not authorise any subsequent use of the short-lived incidental copies. These conditions are further safeguards against abuse of the exemptions which are intended for cases of innocent technical copying. Limitation of Network Service Provider (NSP) liability Next, let me now turn to limitation of liability for Network Service Providers or NSPs. Sir, under the existing framework, NSPs must satisfy certain conditions to qualify for exemption from liability to the copyright owner for monetary relief. The proposed amendments affect two of these conditions, namely, the issue of acquisition of knowledge and the issue of financial benefit. Acquisition of knowledge On acquisition of knowledge, a condition for exemption from liability to the copyright owner for monetary relief is that if an NSP has knowledge of infringing material on its network or on another network to which it refers or links a user, the NSP must expeditiously take reasonable steps to remove or disable access to this material.”
“Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time." Background As background, Members of the House may recall that in November last year, we amended the Copyright Act to strengthen our copyright regime and to ensure that it remained relevant in the face of technological advancement. Several of the amendments were also to fulfil the copyright aspects of our United States-Singapore Free Trade Agreement obligations. The Bill today, Sir, seeks to clarify and refine the law to address issues in the implementation of some of the provisions in the Copyright Act. This is in response to feedback received after the last round of amendments came into force in January this year. Due to the very fast pace of developments in digital technology in an online environment, let me say that we can expect refinements to the law to deal with various practicalities that arise from time to time. Sir, we made available a consultation draft version of the Bill on the website of the Intellectual Property Office of Singapore from 21st March to 19th April this year. All feedback, including responses from IP rights organisations and user groups, was carefully considered, and adjustments made to the proposed amendments, wherever appropriate. Let me turn to the key features of the amendments. Temporary reproductions/user caching First, amendments to the provisions dealing with temporary reproductions and user caching. Sir, when a user receives or makes an electronic communication, or surfs the Internet, incidental copies of material are automatically made on the user's computer. For example, when an Internet user visits a website, a copy of the website content is automatically made by the user's computer, primarily to speed up the loading of the webpage on a repeat visit.”
“Ivan Png Paak Liang asked the Minister for Home Affairs if he can provide the number of cases in which a person used another's NRIC number came to police attention in 2003 and 2004 and, in each case, (i) the disposition of the case; and (ii) how the person acquired the other person's NRIC number.”
“It is true that we have recently decided to lift some of the restrictions in the Residential Property Act (RPA) for foreigners buying Sentosa Cove properties. This special arrangement applies only to Sentosa Cove and does not apply to the rest of Singapore. The reason for that decision is that Sentosa Cove is a unique world-class integrated waterfront development with complementary recreational facilities located on an offshore island. Offering a seafront location, the new lifestyle tenements will appeal to certain Singaporeans and foreigners who see unique value in these waterfront homes. We also intended to create a niche for the international clientele wishing to buy such exclusive waterfront homes and to help Sentosa Cove develop to its fullest potential as a world-class development. Even with the restrictions under the RPA, foreigners have all along been able to purchase a wide range of private residential properties without restrictions: all condominiums as well as apartments that are six or more levels, which is up to 70% of all private residential properties in Singapore. Of the properties where restrictions apply, such as landed properties, foreigners may also purchase them, after obtaining the necessary approval. The RPA strikes a balance between keeping landed property affordable for Singaporeans and attracting foreigners to bring their assets and families to Singapore and contribute to our economy. As with other laws and policies, we will of course review this law from time to time. FRAUDULENT USE OF NRIC 4. Prof.”
“I think every lawyer's dream is to win every case that he appears before the court. But as Ms Indranee Rajah will tell you, in the nature of legal disputes, we cannot get that ideal from the viewpoint of a lawyer, because in law, the very nature of legal disputes does not lend itself to a 100% perfect or correct answer. That is why we have Courts of Appeal.”
“It undertakes civil work, criminal prosecutions, track legal developments in other jurisdictions, undertakes legal reform work and it drafts all the Bills that come up to this Chamber for enactment. And from my personal experience - because I have been involved in the Pedra Branca and in the reclamation cases and ITLOS - they also have to be involved in international law and international legal matters, cases like Pedra Branca, reclamation case with Malaysia, advising Government agencies on FTAs and other international treaties, and so on. In the area of civil work, the particular concern of Prof. Ivan Png, the Attorney-General has a very lean outfit of only 16 legal officers in the Civil Division and considering that these officers provide legal advice and representation to 15 Ministries, eight Organs of State, including Parliament, the Civil Division cannot be described as anything but efficient, small and lean. If we outsource half, as Prof. Ivan Png has said, I think we will have problems in the quality of Bills and the Bills coming here on time, just to give one example. But, I repeat, the Attorney-General is, in principle, amenable to outsourcing.”
“I thank Prof. Ivan Png. It is a refreshing change from the viewpoint expressed by others yesterday, ie, do not outsource too much. But let me say first that the Attorney-General is amenable to outsourcing legal work in-principle in appropriate cases. And indeed, he does so in particular cases, for example, in some civil cases involving arbitration work. He outsources also cases in patent applications, claims against the Government such as, for example, claims against MINDEF and also claims before the Appeals Board in land acquisition cases. But we have to remember that the Attorney-General is the principal legal adviser to the Government and is the Public Prosecutor under the Constitution and these constitutional functions cannot easily be outsourced, or what is the core work of the Attorney-General's Chambers may not be suitable, particularly where they touch on constitutional and administrative matters. Let me add also that on certain complex cases, the Attorney-General does consult external experts. But even here, some of the cases may involve Government policies. It could be highly confidential, if not, secret and it may not be suitable for outsourcing. Furthermore, from the viewpoint of cost, in some cases, it may not be economical to outsource and obviously, if it is not economical to outsource, then it does not make sense to do so. The Member says that the Attorney-General's Chambers is the largest law firm or thereabout. Factually, that is not correct because the largest law firm in Singapore has close to 200 lawyers. But the more important point I want to make is that the Attorney-General's Chambers cannot be considered to be similar to a law firm because of the myriad functions which he performs. The AGC's work spans a wide spectrum.”
“Because that is not going to happen. We do not have a regime of automatic discharge and we want bankrupts to take their obligations to cooperate with the OA and the creditors seriously. As to publicity and education, I agree that this is not only the work of the OA. We have to work together with other agencies to educate and make public awareness of people who run into financial difficulties or who may run into financial difficulties that self-petitioning is not a panacea for their problems. My colleague will take the rest of the questions.”
“The details of the scheme will be worked out by the Official Assignee and the committee which I have mentioned. We hope that this scheme will offer some breathing space to cash-strapped debtors by giving them more time to repay their debts over a period of time. We hope that this omnibus legislation may be ready by the end of this year. That takes me to Dr Maliki's points. He asked about the growing trend of younger people being made bankrupt. Let me say that looking at the age profile of bankruptcy cases from 1996 to 2004, it shows that about 6.4% of bankrupts are from the ages of 21 to 30; 32% between the ages of 31 to 40; and more than 38% between the ages of 41 to 50. So the majority of bankrupts, some 71% are in the age group of 31 to 50, and 6.4% in the age group 21 to 30. But in the last four years, an average of 490 such young people are made bankrupt every year, and they account for 13% of bankruptcies every year and, of course, that is a source of concern. Another point which I think Members would be interested is that we found that over 90% of bankrupts were made bankrupt because of non-business related reasons. And of this 90%, over 67% were made bankrupts because they have overspent on credit facilities, particularly credit card facilities. Statistics showed that more people are being made bankrupt or making themselves bankrupt and the figures rose sharply from 801 in 2003 to 941 in 2004. So what are we doing about it? The OA has set up a self-petition management team to closely monitor the self-petitioned bankrupts. We need to ensure that they are not abusing the bankruptcy process. We hope that people who self-petition do not do so under the false illusion that they do not have to pay their debts and would be automatically discharged after three years.”
“Whereas under judicial management, the management which knows a great deal about the businesses is removed and, under such circumstances, it may be difficult to rehabilitate the company. So there are these pros and cons. But there is an important committee which is looking into the introduction of an omnibus insolvency legislation. By "omnibus", I mean one that would have laws, principles as well as mechanisms applicable to both companies and individuals. The Official Assignee and Official Receiver formed the omnibus insolvency legislation committee last year, comprising representatives from both the private and public sectors for the purposes of reviewing our insolvency laws and creating such an omnibus legislation. As part of this exercise, this committee is also studying the feasibility of introducing the Chapter 11 approach as well as the Chapter 13 approach suggested by Mr Inderjit Singh. At this stage, I do not want to pre-empt the work of this committee by indicating what might be the outcome of the committee's recommendations. But let me elaborate what I have mentioned earlier about the wage reorganisation plan. This will be modelled after the Chapter 13 approach except that the wage reorganisation plan would be supervised by the Official Assignee, and not the court. Such a wage reorganisation plan will enable individual debtors to avoid bankruptcy by allowing them to enter into a repayment plan to repay creditors over a period of time, whilst under protection from legal actions by creditors. I think that would be a welcomed move. What would be the trigger event? The trigger event could be when a debtor receives a statutory demand from a creditor demanding payment.”
“I think that is logical because the majority of bankrupts are uncooperative and do not make any efforts to contribute to their bankruptcy estates. They would be placed in the red zone and monitored more closely and made to observe more stringent requirements. Existing bankrupts also have to attend financial planning seminars so that they can better manage their finances. If I may move on to the points made by Mr Inderjit Singh, basically his call is for proposals to help companies and individuals to avoid getting into bankruptcy. He has suggested introducing the approach of US Chapter 11 so that companies in financial difficulties can apply to court for protection while they continue to operate with the same management team. I think that is basically the thrust of what he is saying. In Singapore, the judicial management system allows a company or its creditors to petition for the company to come under judicial management if the company is unable to pay its debts and there is a reasonable probability of rehabilitating the company or preserving all or part of its business as a going concern. The company would then be taken over and run by judicial managers. I am open to suggestions along the lines that Mr Inderjit Singh has made. But we have to look carefully at the pros and cons of both the Chapter 11 system and the judicial management system. I think Mr Inderjit Singh is aware that both have their upsides and downsides and both have their critics. The Chapter 11 model permits the people who may have gotten the company into financial trouble to lead the charge to get the company out of trouble. Some critics are of the view that Chapter 11 serves only to keep existing management entrenched to the detriment of legitimate creditors.”
“We have to look at how we can develop this ADR mechanism and see if there are other clusters or areas of disputes which are not catered for, and if so, I will be open to suggestions as to how we can have additional ADR facilities. Now, I turn to the comments made by Mr Khalis, Mr Inderjit Singh and Dr Maliki on insolvency, bankruptcy and so on. First, Mr Khalis asked how the OA and IPTO have helped in assisting people who have got into financial difficulties or faced bankruptcy. Let me first say that, since 2002, IPTO has set up, what we call, a Pre-bankruptcy Advisory and Mediation Centre to encourage creditors and debtors to enter into mutually acceptable debt arrangement to avoid bankruptcy. And last year alone, close to 1,700 debtors have made use of this Centre's services. Furthermore, the OA is also considering introducing a wage earner's reorganisation plan which is similar to the US Chapter 13 approach, a point which Mr Inderjit also mentioned. This wage earner's reorganisation plan will enable debtors to repay their debts to the creditors over a period of time through the Official Assignee. It is close to what Mr Ahmad Khalis is envisaging as a form of "judicial management" for individual debtors. I will come back to this when answering Mr Inderjit's points. In the area of bankruptcy administration, let me say that we have to take several considerations in mind. First, we need to strike a balance between the interests of creditors and the interests of debtors. Secondly, we do not want a situation where those who have become bankrupt do not take their financial obligations seriously and do not cooperate with the Official Assignee. So, the OA makes a distinction between those who are cooperative and those who are downright uncooperative.”
“So this procedure that we have put in place results in savings of cost and time, as the parties will be able to make only one trip to the Subordinate Courts and, if their dispute is resolved, they need not proceed further with their complaint. The results of this pilot project have been positive. Since it was piloted in May last year, some 140 cases have been mediated in the facility, with a 71% success rate. In the Supreme Court, the parties are not required to first undergo mediation before their cases are heard. However, they may do so at the Singapore Mediation Centre. And there has been positive feedback in this regard. 83% of the parties involved in SMC-related mediations have indicated savings, in terms of time and money. There are no plans currently to introduce separate mediation processes for claims which are currently not heard by the Small Claims Tribunals. The reason is there exist many other existing avenues for the resolution of disputes. 12.30 pm I take note of what Mr Ahmad Khalis said about hire purchase disputes, and property disputes. It depends on the nature of the dispute because some of these hire purchase disputes can be referred to CASE for their processes. Property disputes, of course, can be very diverse in nature and I will have to have details of the type of property disputes he has in mind. If it is consumer-related, CASE or professional bodies which have ADR can look at the matter. If they are more serious, they could be referred to the Strata Titles Boards. And if they require more specialist treatment, then bodies like the Singapore Institute of Surveyors and Valuers have their own mediators which can handle these matters. So basically, we have a whole range of ADR in Singapore, and this is not finite.”
“Mr V K Rajah now heads a committee for the international promotion of Singapore law to implement these recommendations. Mr Ahmad Khalis spoke about ADR, and I also welcome his support for these moves. His question was ADR vis-a-vis the courts. I think that while litigation in the courts will continue to be the integral part of our dispute resolution infrastructure, in the past 10 years or so, substantial progress has been made in developing ADR infrastructure and building up an ADR culture. In the Subordinate Courts, mediation and ADR are used extensively to complement the traditional court processes in the form of Court Dispute Resolution (or "CDR" for short). Over the recent years, CDR has broadened to cover civil cases at an earlier stage of the proceedings as well as the use of online virtual mediation. So, in answer to Mr Ahmad Khalis, the answer is, yes, ADR in the Subordinate Courts does provide a less costly, faster and a more harmonious method of resolving disputes by reaching an early settlement. I think it has proven to be very effective. Mediation is used not only in civil cases but also in family, small claims and magistrates' complaints cases. From 1994 to 2004, some 48,300 civil matters were mediated, with an average settlement rate of over 94%, which is very good. For community disputes, amendments were made to the Community Mediation Centres Act last year, and this strengthened the power of the magistrates to refer appropriate disputes to mediation at the Community Mediation Centre without the need for the consent of all the parties; so that has helped. This way, suitable community disputes are now being channelled immediately to a pilot CMC facility co-located at the Subordinate Courts' premises itself.”
“She is right that for an arbitration hub, we need ancillary services like transcription, translation, hotels. We are looking into these. They are, of course, readily available in the market, and SIAC has been using them extensively for arbitrations. When parties for ad hoc arbitrations approach SIAC, SIAC certainly helps them locate and secure the necessary services. And I would assure her that MinLaw and SIAC will continue to develop networks of related service partners to ensure that arbitrations held in Singapore will benefit from the best availability of such services. She made the point, and I agree with her, that the choice of law and the advantage of Singapore law is important in arbitration. She will be aware that the Academy of Law actually established a Working Group, chaired by Judicial Commissioner as he then was, Mr V K Rajah. They concluded that while Singapore law was not in the position to supplant the US and UK laws completely in business dealings, it could be the preferred alternative in this region. So, she is right here. The greater use of Singapore law in international transactions will bring benefits in the form of more work for legal services and other related services. I think that our commercial law and our legal system can be like a bridge between the businesses in the East and the West, and we should take full advantage of this. The Committee, headed by Mr V K Rajah, makes some very useful and practical recommendations which I do not have time to go into the details here, but these recommendations are designed to further the use of Singapore law in arbitrations, contracts and legal instruments. The Chief Justice and Ministry of Law have accepted the recommendations of the Working Group.”
“Sir, first, I want to thank Ms Indranee Rajah for her strong support of the desire to make Singapore an international arbitration hub. It is true that there is tremendous potential to be tapped. But last year, we made very good progress to strengthen our position as an arbitration hub. For example, the International Chamber of Commerce and the Singapore International Arbitration Centre (SIAC) held the first ever symposium on international arbitration which attracted over 160 participants from 10 countries. Other major events lined up include regional conference of United Nations Commission on International Trade Law, which will focus on the Model Law on International Commercial Arbitration. The International Bar Association and World Arbitration will also be held here. And down the road, we are looking forward to the 16th International Congress of Maritime Arbitrators. The SIAC, in particular, has done a lot for our positioning as an international arbitration hub. Together with the Singapore Maritime Foundation, it has established the Singapore Chamber of Maritime Arbitration, a purpose-built institution for maritime claims. It will also be setting up a joint venture dispute resolution centre in India, in partnership with India's Construction and Industry Development Council. It also sets up Asia-Pacific's first registry for lodging arbitral awards to authenticate awards prior to the enforcement. Ministry of Law, on its part, has set up an ADR Advisory Committee to be a forum for feedback and input on how further we can make progress in this regard. This Committee has practitioners and representatives from local ADR institutions, ADR practitioners, academia, Government representatives and members of the Judiciary.”
“Sir, I can only set out the facts which show that there was more to the case than meets the eye. Let me say that we have a clean andefficient criminal justice system in Singapore with tremendous international respect and reputation which concerns all stages - the Police, the courts, the prosecution. If there is any case of miscarriage of justice or serious lapse in the system, we would want to know - the Government, the Chief Justice and the Attorney-General would allwant to know. But I do not think that this is such a case. Let me also add that the accused person had criminal records going back to 1981. He has been imprisoned several times: in 1981, for theft; 1983, for theft in dwelling house; 1990, theft in dwelling house; 1991, theft; 1992, cheating by personation; 2001, cheating; and 2002, theft. And he had brushes with the law overseas. He has been in prison in the United Kingdom, Taiwan and the United States. He was deported to Singapore by Taiwan in 1986 and deported to Singapore by the United States in 1990. The United States' Immigration andNaturalisation Service, in a letter, when arranging deportation, said that Yeo took advantage of every person he came into contact with and the story told by everyone he had befriended or had dealings with him, is the same, that he is a compulsive liar and a thief. PORTABLE MEDICAL BENEFITS FOR THE UNEMPLOYED The following Question stood in the name of Mdm Ho Geok Choo - 2. To ask the Minister for Health (a) how will portable medical benefits be made eligible to the unemployed; and (b) what measures are available for the unemployed to participate in the MediShield programme.”
“The court has the discretion to stay execution on terms thatit deems reasonable, on the application of the accused. What happened here was that the accused did not apply for bail pending appeal. Finally, the question of compensation does not arise. There was no malicious prosecution as there was more than ample evidence to prosecute him in the first place. There was no delay, let alone inordinate delay, in the process of justice nor was there aflaw in the system. There is no basis for compensation simply because a conviction had been set aside on appeal. As far as I am aware, no country in the world would do so on such terms.”
“At first blush, this seems to provide ample time for an appeal. However, he was released two months after being sentenced. This is because the sentence was effectively reduced tofour months and 20 days, to begin from 9th September 2004. Why was that so? Firstly, the court backdated the sentence to commencefrom the date when the accused was first remanded on the charge, and secondly, there was a one-third remission of the sentence on account of good behaviour in prison. Therefore,he served out his sentence and was released on 29th January 2005. Hefiled his notice of appeal on 3rd December 2004. There was a period of about two months between his decision to appeal and the hearing of the appeal on 1st February 2005. This is a reasonable period of time, and there was no delay in the sequence of events that followed the appellant's notice of appeal. Mr Arthur Fongasked for data over a period of10 years to ascertain if this case is an aberration. I hope that Mr Fong understands when I say I do notthink that I should ask the courts to spend valuable resources to search records over 10 years. But so far as can be ascertained in the time available, there are no records of any similar cases. This is because of the peculiar combination of facts I have outlined. Indeed, out of a total of 233,135 criminal cases heard by the Subordinate Courtslast year, only 71 cases or 0.03% of them were heard by the High Court on appeal. As for the measures to put in place to prevent such repeat cases, that implies that there was some serious lapse or shortcoming which warrants special measures. This is not the case, Sir. Let me add that in most cases involving short sentences, the accused may decide not to appeal, or apply for bail pending appeal.”
“Mr Speaker, Sir, this case received much media coverage and the impression given was that there was some serious lapse or travesty of justice. This is not the case, Sir. First, let me explain briefly the processes before an appeal is heard. When an accused person appeals against his conviction or against asentence, several things must take place before the appeal can be heard. The judge who convicted the accused would write the grounds of his decision. The accused (or his lawyers) would study the detailed grounds before filing the formal petition of appeal, and prepare for the hearing. The public prosecutor also needs to study the documents and prepare for the hearing. Even in the most efficient of legal systems, this sequence requires time. Indeed, it is in the interests of the accused to have adequate time to decide whether to appeal, to study the detailed grounds of the judge's decision, and to research and prepare arguments before the appeal court. It is, therefore, neither practical, nor is it in the interests of justice, for the hearing of an appeal to follow the decision to appeal too closely. Sir, short sentences of imprisonment, for example, of a day, a week or even a few months, may sometimes be shorter than the time required for the necessary processes prior to the hearing of an appeal. In such cases, if an appeal is lodged, it may be heard after the sentence has been completed. Because of this and the costs incurred, appeals against short sentences are rare. But thisis not peculiar to Singapore. It also happens in other jurisdictions with developed rules of procedure. Now, let me turn to this particular case. Here, he was convicted on 26th November last year andsentenced toseven months' imprisonment.”
“And IPOS on its part has been working and will continue to work with enforcement agencies, rights holders and other relevant agencies to ensure that there is adequate education and training for enforcement personnel. Finally, I think there is one more question that Mr Ahmad Khalis asked on whether there is provision here going beyond the US-Singapore FTA, I would say that the main set of provisions, which is not connected with the FTA in this Bill, deals with the fair dealing provisions which I spoke at length during my Second Reading speech. As mentioned earlier, currently, the fair dealing provisions are somewhat restrictive. They deal with specified activities and those specified activities have been retained, but we have also refined the fair dealing regime to allow for other activities to be considered, such as fair dealing based on a set of factors. And I think that is better because they are also in tune with developments in other countries, like the US and Australia. I think it is an amendment which we need because they seek to preserve the unimpeded exchange of information and ideas to create an environment which is conducive to the development of creative works. I think I have dealt with Mr Zainudin's points and I have also dealt with the questions raised by Ms Indranee Rajah. I thank the Members for their support and comments on the Bill. Question put, and agreed to. Bill accordingly read a Second time and committed to a Committee of the whole House. The House immediately resolved itself into a Committee on the Bill. - [Prof. S. Jayakumar]. Bill considered in Committee; reported without amendment; read a Third time and passed.”
“I believe Mr Ahmad Khalis also touched on shifting of the burden of proof. I should clarify that, as I see the provisions, we had not actually shifted the burden of proof. Take section 254, for example, which is really an extension of an existing provision which covers application of search warrant for criminal prosecution for performance rights. This provision actually continues the existing system where an applicant for search warrant needs to satisfy the court that there is a reasonable cause for suspecting the items to be seized within the premises constitute evidence of such offence. Let me assure him that all search warrants, of course, will be executed by the Police and not by the IP rights holders who would use due discretion in exercising the power. The only change is that the rights holder now has a flexibility to list the items to be seized in general categories where it is not possible simply to specify each and every item. By the way, these provisions in the Copyright Act are similar to, and actually they mirror, the amendments which were moved to the Trade Marks Act in this House in June. So they are quite different from the civil actions, whether it is the Mareva or Anton Piller remedies. On border enforcement, Mr Khalis spoke about the need to educate shippers and how we train customs officers. These provisions on border enforcement are also to be found in the amendments to the Trade Marks Act which we adopted earlier. Let me say in reply to him that we will of course continue to work closely - ICA, Customs, MPA, and other relevant agencies - to ensure that shippers and other affected industries are aware of the requirements of these new laws.”
“However, where the materials are stored in the NSP's systems, the NSP is in a position to comply with the take down notice. So that is how the provisions have been drafted in that way, which caught Ms Indranee Rajah's attention. Now, let me deal with some of the points raised by Mr Ahmad Khalis. He asked a question: since we have made significant changes to the copyright regime, should we not enact a new Act? We decided not to repeal and re-enact because the fundamental policy intent or the principles behind the copyright legislation still remain unchanged. Amendments will augment and refine the existing regime. We have not completely overhauled it. I would think the legal fraternity and the industry are already familiar with the present structure in the existing Act. He spoke about public education, I agree with him, and also about the need to create public awareness. The Intellectual Property Office of Singapore (IPOS) has done quite a bit and it will continue to do so. As regards this Bill, it was put up for public consultation. We have held sessions with the key players in the industry. And I take his point about the general public. The reason I agree with him is that all of us, Singaporeans, can easily understand the need to take action against theft of property belonging to somebody, ie, physical property, somebody enters your home and steals the property. There is no quarrel about that. It is a well-established concept. But, somehow, it is not as easily understood that there can be theft of intellectual property which can cause equal harm and damage to the owner of the property. So this is something that we have to work on. Because, as I just said in the beginning, a sound IP regime is absolutely important for future economic growth.”
“It is also using qualitative and quantitative approaches. Because grievous hurt is defined as something which causes a sufferer to be within the space of 20 days to be in severe bodily pain. How do you decide whether the sufferer is in severe bodily pain? It is a question of fact. How much bodily pain must a sufferer suffer before you decide? So you lay the criterion, 20 days' severe bodily pain. It is qualitative and quantitative. You have many other examples. I think we have tried our best to work out the criteria and the mischief which this law is intended to deal with in a way such that one will know that if you do this, it is not a mischief that is going to land you in jail, as Mr Zainudin was worried about. On Network Service Providers, I should explain to Ms Indranee Rajah that these provisions actually set out a comprehensive framework. But they are slightly different because they cover the different functions of the NSPs. The different functions, for example, which the provisions deal with are transmitting, routing or storing of materials. For each of these functions, the NSPs are required to comply with different sets of conditions. So not all sets of conditions will apply for every one of their functions. It is pretty technical. I sat down with our people who understand it, and the way I understand it, and I believe it is correct, is that section 193B deals with the NSPs' function in the transmission or routing of materials. In the transmission or routing of materials, it is not appropriate to require the NSPs to take down infringing materials in the course of carrying out that function. However, the court may order the NSPs to take reasonable steps to disable access to an online location or to terminate a specified account.”
“For commercial advantage, the person is said to obtain a commercial advantage if the act is done to obtain a direct advantage, benefit or financial gain for a business or trade carried on by him. You have to look at these two limbs in totality to the provision. So, it is really what it is intended to catch and what it is not intended to catch. If someone uploads many popular films, if I may give an illustration, such as the Lord of the Rings or Spiderman II and so on, without the authorisation of the copyright owner, and he uploads it into a website, before these films are commercially released so that it pre-empts theatrical release, then, of course, many people will just download the movies and, as a result, the copyright owner suffers because the people do not go to the cinemas or buy the films. While the person who uploaded the films may not have personally benefited, he would have definitely caused substantial impact on the owner of the copyright. But it is not intended to catch a person who commits an infringement by occasionally downloading an article or song from the Internet for his own personal enjoyment. But let me add that it does not mean that he is scot-free because, legally, that is still an infringement but attracting a civil action. Here, in the Bill, we are talking about criminalisation. That example of downloading some songs for enjoyment is not caught within this provision. So, here, again, we have decided to take this approach of leaving these criteria which, I think, in my view, is sufficiently workable and gives sufficient guidelines. But I realise that I am dealing with lawyers here. Of course, similar approaches are not unknown of in our legal system. For example, in our Penal Code, section 320 designates grievous hurt.”
“The way the provision is drafted, the maximum statutory damages award is applicable for each action brought by the owner of the copyright against the person who contravenes the relevant provisions, and it is not pegged to the number of devices or measures recommended, although we envisage that this fact - number of devices or measures - can be a relevant factor in determining the appropriate award. Ms Indranee Rajah also spoke about section 136 - the guidelines for the courts to determine whether the extent of the infringement is significant - and I think Mr Zainudin also mentioned that in connection with the other limb of commercial advantage. What we have tried to do in this section, and with parallel sections elsewhere, is to provide guidelines. Because of the concerns of Ms Indranee Rajah and Mr Zainudin that the way it is drafted may catch the odd home user who in good faith innocently downloads some items, I think I should assure them that the way it is drafted is unlikely to have that result. Because, if you look at the guidelines, this end-user criminalisation provision applies where a person infringes a copyright work and the infringement of the copyright is wilful and the extent of the infringement is either significant or the person does it to obtain a commercial advantage. And in determining whether it is siginificant or not, the courts will have a set of guidelines. They look at the volume of the articles. They look at the value of the articles. They will then examine whether that person's infringement has a substantial prejudicial impact on the owner of the copyright. So, you can imagine that, if someone at home is downloading some items for personal use, these guidelines will give sufficient guidance.”
“I think it is possible to conceive that approach, but we have elected for a system of damages based on compensatory principles. And in view of these principles, the court will award an appropriate amount based on the evidence and circumstances in each case. We have tried to make the set of guiding factors as comprehensive as possible. The court will look into the nature and purpose of the infringing act, including whether the infringing act was done for commercial purpose; flagrancy of the infringement; whether the party acted in bad faith; any loss suffered or likely to be suffered; any benefit shown to have accrued to the defendant; the conduct of the parties; the need for deterrence; and other relevant factors. We have not opted for the minimum sum because the situations can be so complex, so diverse and so varied. The works can be varied. The nature of the copyright infringement can also be so diverse and the mitigating factors, if there are any, can also vary. So, we decided that it is best to adopt this approach and see whether it works. And if it works, we can maintain the system. But if experience shows that it might be better to have a minimum sum, then we will have a relook at it. But I take Ms Indranee Rajah's point. The reason why we have opted for it is because, I think, it may be very difficult to work out the minimum sum, as it is not foreseeable with the kind of circumstances of the cases where statutory damages may have to be awarded. The next point that she made was about the new section 261 on the maximum statutory damages, and whether it is applicable per device.”
“Mr Speaker, Sir, I thank Members - Ms Indranee Rajah, Mr Ahmad Khalis and Mr Zainudin - for their support of the Bill and for the specific comments that they have raised, which I will do my best to clarify. I am glad that the Members have recognised that we need to have a good IP regime for the interest of our economy and for our national interest. Because, if we did not have a sound and modern IP legislative framework, we will never be able to get the kind of IP industries to locate here - I doubt very much - for example, whether we would have succeeded in having prominent film industries, like Lucasfilm, to have a presence here. So, a sound IP legal framework is a key infrastructure that we need to put in place. Mr Zainudin rightly gave a chronology of all our amendments. Will there be more amendments? I do not know. But, given the pace of technology and digital technology, where creators of works are trying to ensure that the copyrights which they own keep in pace with technology as well as those committed to circumventing the technology also keep in pace with the fast-moving developments, so do not be surprised if we have to come back to Parliament from time to time to ensure that we are in tune. May I first take up the points made by Ms Indranee Rajah, some of which were alluded to by other Members. Her first point was about statutory damages (section 119). Just to recap, as I said, the statutory damages regime should provide an alternative for rights holders to be compensated for losses suffered due to infringements. Where a plaintiff elects for statutory damages, there is no need to prove actual or foreseeable loss of the infringing activity. Her point was: why not have a minimum sum?”
“In conclusion, let me say that these amendments in the Bill, although fairly complicated and technical, are necessary to update Singapore's copyright legislation to meet the needs of businesses, creators and users in the fast-evolving digital age. It provides enhanced enforcement measures to encourage stakeholders in the creative industries to further engage in high value-added activities in Singapore. It also provides balancing measures to ensure that our copyright laws serve to foster greater creativity in Singapore. In short, the Bill will provide Singapore with a copyright system comparable to those in the most advanced countries in the world. Sir, I beg to move. Question proposed.”
“Presently, Singapore has a fair dealing system that permits the use of copyrighted material for specified activities, namely, research and private study, review and criticism, and news reporting. While this system provides certainty, it is also restrictive in that it does not cater for other new uses which could fall under the concept of fair dealing. While the current permitted activities have been retained, clause 9 of the Bill refines our fair dealing system by allowing other acts to be assessed according to a set of factors in determining whether these acts could constitute fair dealing. We have also proposed a new factor for consideration, namely, "the possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price". In addition to the new fair dealing amendments, we have provided, in clause 11, new exceptions designed to ensure that computer-related research is not hampered by the enhanced protection for copyright works in the digital environment. Mr Speaker, these amendments have been proposed after a careful review of the fair dealing provisions in jurisdictions such as the UK, Germany, France and the United States. I believe they will create an environment conducive to the development of creative works, and also facilitate greater investment, research and development in the copyright industries in Singapore. Overall, Sir, let me say that the Bill also includes transitional provisions to ensure that the new rights do not interfere with prior arrangements between contractual parties. Rights under any contracts entered into before the operation of this new law will be governed under the previous copyright law.”
“At the same time, the new provisions would also provide copyright owners with a more accessible course of action to enforce their rights in the event of infringement. This is particularly important to protect the interests of up-and-coming local content producers and, ultimately, further our efforts to make Singapore a knowledge economy and a global centre for innovation and creative industries. Let me now turn to ex-officio and border enforcement. Clauses 37 to 42 of the Bill align border enforcement powers with those provided in the Trade Marks Act. The new provisions will enable authorised officers to detain infringing imports, infringing goods consigned to a local party and infringing goods that are to be exported from Singapore. In addition, Customs will also have the powers to examine suspected infringing goods, including those in transit. Several other amendments have also been incorporated to make it easier for a copyright owner to initiate the detention of infringing imports by Customs. Mr Speaker, Sir, I have repeatedly mentioned in my speech the need to strike a balance between the interests of copyright owners and users. Like all our IP laws, copyright laws are intended to be an incentive to create original works through the granting of exclusive rights. This objective can only be achieved if the exchange of information and ideas is not unduly impeded. Therefore, we have put in place specific exceptions in relation to new rights, and for public interest organisations such as educational institutions and libraries. I will now deal with proposed amendments to the general "fair dealing" provisions, which apply throughout the Copyright Act. Where an act is determined to be "fair dealing", it means that it is not an infringement of the Copyright.”
“Let me turn to limitation of liability for Network Service Providers. Mr Speaker, Sir, the provisions on Network Service Provider liability in this Bill are intended to make NSPs more pro-active in assisting copyright owners to protect and enforce their rights. In the current Act, NSPs enjoy blanket immunity for acts of infringement of copyright or copyright infringing material on their networks. In other words, NSPs are completely absolved of responsibility for such acts or infringing material that they host or provide access to. The provisions in this Bill serve to create a better balance between the interests of rights owners and NSPs, by ensuring that the benefit of immunity that NSPs can enjoy are now accompanied by certain responsibilities. In 1999, I noted that NSPs play a vital role in the online delivery of content for both copyright owners and users. Today, NSPs continue to play key roles in the transmission and routing, as well as the provision of connections to and storage of information. Thus, the new provisions provide greater clarity as to the different roles NSPs play, and their associated responsibilities for each role. Let me stress that these provisions do not mean that an NSP is liable for copyright infringement if it chooses not to meet the requirements to qualify for the immunity. They only mean that in cases where the NSP chooses not to meet the qualifying requirements for immunity, the NSP's liability will be governed by the general provisions of the Copyright Act, and the NSP will not be able to rely on the immunity provided by this section. The new provisions will provide greater certainty for NSPs operating in Singapore, as users and businesses become more sophisticated in their dealings over the Internet.”
“A person who, for non-trade purposes, distributes infringing articles to such an extent as to affect prejudicially the owner of the copyright will also be guilty of an offence. With the advent of digital technology, the impact of infringement on the interests of copyright owners has, as a result, become very much more severe. For example, Internet technology now makes it possible for syndicates to post movies and software for all to download for free, sometimes in return for nothing more than recognition and notoriety. While these infringers may not directly profit from these activities, their actions may cause substantial harm to the copyright owner, his investments and creative efforts. The new section 136(3A) provides criminal penalties for wilful copyright infringement, in the case where the extent of infringement is significant, and/or where the person does the act to obtain a commercial advantage. For the first case, the new section lists factors to assist the Court in determining if the extent of an infringement is significant - these include the volume of articles that are infringing copies, the value of these infringing copies, and whether the infringement has a substantial prejudicial impact on the copyright owner. For the second case, new section 136(6B) defines the element of commercial advantage. Since in either case, a significant infringement, or an infringement linked to a business or trade is involved, and both the extent of harm and the degree of culpability are sizeable, such infringements will attract criminal penalties. The first-time offender under the new section 136(3A) will face penalties up to a maximum fine of $20,000 and/or imprisonment not exceeding 6 months. Subsequent offenders will face heavier penalties.”
“However, if the defendant, in good faith, puts these matters in issue, the plaintiff may now, by affidavit, assert relevant facts attesting to the ownership and subsistence of the copyright. Such affidavit will serve as prima facie proof of the matters asserted unless, of course, the defendant proves otherwise. Turning to statutory damages regime, Members would recall that in June this year, when I moved amendments to the Trade Marks Act, we enacted a statutory damages regime as a complement to the current process of assessing damages in an infringement suit. In this Bill, we proposed to introduce a similar regime for the Copyright Act. This provides copyright owners, in an infringement action, the option to choose, in lieu of actual damages suffered, a new remedy of "statutory damages". This will be especially useful in situations where it is difficult for the copyright owner to prove the quantum of actual losses. Instead, the court will assess the quantum of statutory damages, based on compensatory principles, elaborated in new subsection 119(5). This remedy of statutory damages will also be available for the provisions relating to the circumvention of technological measures, rights management information and performances. This provision will serve as an additional deterrent against infringers. Let me turn to criminal liability for wilful infringement of copyright. Sir, if I may first generalise, under the current Copyright Act, two types of acts attract criminal liability. The first involves an act where a person derives benefits by dealing commercially with infringing articles. A person who manufactures, imports, distributes or sells infringing copyright material is guilty of an offence. The second type considers the harm the act causes to the copyright owner.”
“Sir, having consulted the relevant stakeholders, we will also exclude public non-profit organisations and institutions such as libraries, archives and educational institutions that routinely come into contact with large volumes of copyrighted works. These institutions have been exempted from criminal liability although they may remain subject to civil remedies for any violation. Mr Speaker, Sir, these provisions will provide greater assurance to copyright owners and improve their ability to protect their copyrighted works from infringement. We will join the US, UK, Australia, the European Union and Japan in recognising the importance of such measures in protecting copyrighted works from infringement. Let me turn now to stronger enforcement measures. Sir, all the rights which I mentioned thus far, would be meaningful if they are backed up by a robust enforcement framework. We have proposed amendments to enhance both the civil and criminal remedies to infringement. Let me touch on some of these changes. First, changes to civil procedures and remedies beginning with presumption of copyright. Clause 35 of the Bill, Sir, refines the existing provision under our Copyright Act on the presumption of copyright in infringement actions. This refinement is intended to facilitate the process of copyright infringement actions, and to render such actions less onerous for the copyright owner. The presumption in favour of the copyright owner plaintiff, namely, that copyright subsists in the copyrighted work and that he is the owner of the copyright, will apply so long as the defendant does not satisfy the court that he puts these matters in issue in good faith.”
“These technological measures could also include a measure applied to a tangible copy of a copyrighted work, or used in connection with the exercise of copyright. Copyright owners should reasonably expect their efforts in employing such measures to protect their works from infringement not to be thwarted and not to have those technological measures circumvented. Accordingly, Mr Speaker, Sir, clause 59 introduces a new Part XIIIA providing civil remedies and criminal penalties for the circumvention of technological measures used by copyright owners in connection with the exercise of their copyright. A copyright owner can bring suit against a person who manufactures or trades in circumvention measures, or offers services related to the circumvention of a technological measure. If the person does these acts wilfully and for the purpose of obtaining a commercial advantage, he may also be guilty of an offence. We have also built in review mechanisms that will allow our law to be responsive to technological changes. Where it has been determined that a dealing with a work or a class of works does not amount to an infringement, and that the legitimate use of these works has been adversely impaired or affected, the Minister has the discretion to exclude such works from the operation of these provisions which I have mentioned. As before, we have provided here exceptions such that legitimate forms of such acts would not be unduly impeded. These are enumerated in new sections 261D and 261E. Briefly, examples of such exempted acts include authorised encryption research and security testing, specific reverse engineering to ensure interoperability, law enforcement, intelligence and other Government activities such as defence and security, amongst others.”
“In the digital environment, an example of RMI could be a digital watermark, which incorporates information identifying the author of the work. For example, RMI enables copyright owners to track usage of their works on the Internet. It also gives users confidence in the authenticity of the source of a work, and certainty as to the conditions of its use. It is thus important to protect RMI and to prevent the distribution of copies where such information has been removed or manipulated in order to induce, enable, facilitate or conceal an infringement. The Bill enhances protection by providing civil remedies against unauthorised distribution or importation for distribution of altered RMI. It also provides civil remedies against the unauthorised distribution, importation for distribution or communication of works or other subject matter in respect of which RMI has been removed or altered. In addition, the Bill also creates a new criminal offence in cases where any of the prohibited acts in relation to RMI are carried out wilfully and for the purpose of obtaining a commercial advantage. Next, I turn to technological measures protecting copyrighted works. Sir, the advent of digital technology has made it easy to make perfect copies of copyrighted works. This new technology has made effective enforcement of copyright in the digital realm therefore a much more difficult undertaking than for conventional physical works of copyright. So in order to protect their works from being infringed, copyright owners may employ technological measures to protect their works. These technological measures include access control systems such as encryption and copy control systems.”
“But let me say, Sir, that we have been mindful that the introduction of new rights does not lead to an undue restriction of the fair uses of copyrighted material. Exceptions to these rights have therefore been provided, for example, for educational institutions and libraries. These exceptions can be found in clauses 7, 14, 15, 16, 17 and 24. We have also catered for exceptions in specific situations, such as an exception for the digital transmission of sound recordings within a business establishment, as long as such transmission is not the core business of such an establishment. There are also necessary exceptions to cater for technical processes; for example, temporary, transient, incidental copies that could occur as part of making a lawful communication. In the case of non-interactive transmissions such as webcasting, we have provided a limited right to equitable remuneration. These exceptions can be found in clause 26 of the Bill which introduces new sections 107A to 107E. Mr Speaker, these amendments will bring our copyright framework in line with international standards, embodied in international treaties such as the World Intellectual Property Organisation's Copyright Treaty, the WCT, and the Performances and Phonograms Treaty, the WPPT. With these changes, Singapore will provide a similar copyright regime to the 48 other member states party to the WCT, and 45 others that are party to the WPPT. Let me say something about the removal and alteration of rights management information. The Copyright Act already provides civil remedies for copyright owners to prevent the unauthorised removal or alteration of rights management information, or RMI. RMI refers to information which may identify the work, the author, or the terms and conditions of use of that work.”
“First, new right of communication for works. Sir, the Internet is becoming an increasingly important platform through which copyright owners promote and disseminate their copyrighted works. Such digital dissemination of works has become the basis for businesses such as home-grown music distributor Soundbuzz. Clause 8 of the Bill introduces a new right to enable the copyright owner to control the communication of his work to the public. This new communication right encompasses both the existing broadcasting and cable programme rights, and also the right to control the dissemination of works on the Internet. This new right will enable copyright owners or other entrepreneurs to fully leverage on the Internet platform as a means to disseminate copyrighted material. Next, new rights for producers of sound recordings. Likewise, Sir, clause 20 provides, for producers of sound recordings, a new right to publish a sound recording, and the right to make available to the public a sound recording by means of, or as part of, a digital audio transmission. These new rights will enable producers of sound recordings to control interactive transmissions of their recordings, and give them greater confidence in the protection of their IP in this medium. Next, let me speak about new rights for performers. Clause 51 provides new rights to performers such as the right to control indirect recordings of their performances, the right to be attributed, the right to publish and the right to communicate a recording of their performance to the public. These rights will enable the performer to control the way his performance is used and exploited in the commercial market. We are confident these amendments will be welcomed by performing artistes in the music and media industry.”
“The proposed amendments, Sir, are a result of a two-year review of technological and international developments, and were finalised only after extensive consultations with the relevant stakeholders. Since June 2003, the Intellectual Property Office of Singapore, or IPOS, has chaired an IP taskforce in order to obtain well-rounded feedback. The taskforce comprises members from business associations such as the Association of Small and Medium Enterprises and the Singapore International Chamber of Commerce, as well as Government statutory boards such as the Economic Development Board and the Media Development Authority. To complement the IP taskforce, an inter-Ministry committee comprising the relevant Government agencies was also set up to review the proposed amendments. In proposing these amendments, we have sought to strike a good balance between the interests of copyright owners and those of the copyright users. We have taken into account legislation in other countries including that of the United States, the United Kingdom, Australia and Canada. We made available a consultation draft version of the Bill on IPOS' website, and IPOS invited further feedback through a public seminar. We received useful feedback from several IP rights organisations, user groups, the Law Society and experts in IP law. All feedback was carefully considered and modifications incorporated where appropriate. The Government is also committed to extensive public awareness initiatives. Let me first deal with the amendments related to enhancing the copyright regime to meet the needs of copyright owners and users in the new digital environment. The first group of amendments introduces several new rights, in recognition of changing business models in the digital realm.”
“Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time." Mr Speaker, Sir, Members of the House may recall that in June this year, four Bills were enacted to strengthen our intellectual property regime. At that time, I had informed the House that a further set of amendments to the Copyright Act would be proposed later in the year. Sir, this Bill seeks to amend the Copyright Act to enhance and strengthen our copyright regime, particularly to ensure that our copyright laws remain relevant in an age of rapid technological development. Major amendments to the Act were last made in 1999 to keep pace with the emerging popularity of the online environment and the growth of electronic commerce. Even then, I had said that the amendments would by no means be the last word on the subject. Today, we all are aware of the rapid pace of technological advancement, particularly in the realm of digital technology. Singapore's information communications technology (or ICT) environment has also correspondingly evolved. In 1999, only 42% of Singapore households enjoyed home Internet access. This has since increased to 65%, or almost two-thirds of all households. More households also have high speed access to the Internet - 40% of households have broadband access now compared to only 3% in 1999. The amendments in the Bill address the needs of both copyright owners and users in this new environment. These changes in the Bill will also further strengthen Singapore's position as an attractive location for copyright-based activities. Several of the amendments in the Bill also relate to our obligations under the United States-Singapore Free Trade Agreement.”
“Having said that, let me point out that we have accepted recommendations to make it clear in this Bill that if a settlor reserves to himself powers of investment of asset management, then that in itself would not invalidate the trust. This is reflected in clause 21 under a new section 90(5). Finally, let me assure again the MP that this Bill is not the end of the review process and we would continue to monitor and study the best international practices and developments as we take into account future changes to our law. Question put, and agreed to. Bill accordingly read a Second time and committed to a Committee of the whole House. The House immediately resolved itself into a Committee on the Bill. - [Prof. S Jayakumar]. Bill considered in Committee; reported without amendment; read a Third time and passed. COMPETITION BILL Order for Second Reading read.”
“But, nevertheless, let me assure her that the Government would constantly monitor developments in the trust industry and would review policies to ensure that Singapore retains our competitive edge as a financial centre. I believe that the Ministry of Finance would also be reviewing the tax treatment of trusts set up by Singapore citizens or resident individuals. She also mentioned the Trust Companies Act. She is right in that this is work-in-progress. I understand that the MAS and the Ministry of Finance are currently creating a new regulatory framework for trust companies, including a new Trust Companies Act, to increase legal clarity and guidance for trust companies in Singapore. MAS, which released the draft Trust Companies Bill for public consultation in July this year, would also take over the administration of trust companies from the Accounting and Corporate Regulatory Authority. Policy positions, I believe, are now being finalised and I understand that the updated legislation is scheduled for First Reading in Parliament sometime in January 2005. She also touched on single purpose trusts and also non-charitable purpose trusts and the reservation powers of settlors. Let me say that in our review, we did consider the specific areas that she mentioned, but many issues that arise, especially from non-charitable purpose trusts and settlors' reserve powers, are matters which require careful study and we also need to see how other jurisdictions handle them and what has been their experience. We thought that this is a matter that we would not put in this Bill now and make a determination much later after we have had the opportunity to study the experiences of other countries.”