by Clara Cheo and Mark Shaw — 8 Apr 2016
The creative industries – books, magazine, theater, music, movies and TV, computer software and the like – are an essential component of Singapore’s national ambitions for future economic sustainability.
Over the years, in fact going back a generation, those ambitions have sometimes fallen victim to the bad guys; people who make their living by engaging in the production and distribution of illegal, pirated content made readily available to anyone looking for it. But the recent implementation of ground-breaking legislation is an encouraging development that levels the playing field significantly for content creators and distributors, including Golden Village and the Shaw Organisation, who depend on copyright laws in order to make a living.
A new day has dawned in Singapore. The High Court’s order issued on February 11 requiring Singapore’s network service providers to block access to SolarMovie.ph evidences a mutual commitment by industry and government to work cooperatively to promote and protect creativity, and confirms the republic’s leadership role in intellectual property rights reform.
These orders resulted from the High Court’s determination, that SolarMovie fit the statutory criteria of a Flagrantly Infringing Online Location as defined under Singapore law. SolarMovie has already been the subject of similar blocking orders in a number of other jurisdictions including Denmark, Italy, Romania, and the United Kingdom. Six international producers and distributors of filmed entertainment, represented by the Motion Picture Association, petitioned the court for this relief in January, marking the first such proceedings ever brought in Singapore and the Asia-Pacific region.
Though innovative in their scope and impact, the orders are neither capricious nor arbitrary. In fact they represent the culmination of more than five years of careful policy consideration and legislative deliberation. The Copyright (Amendment) Act 2014 resulted largely from recommendations issued in 2012 by the Media Convergence Review Panel, a 12-member committee consisting of public and private sector representatives tasked, among other things, with developing policy and regulatory responses to copyright and digital piracy challenges. That panel, which included senior executives and officials from the Attorney-General’s Office, MediaCorp, Singapore Press Holdings, Samsung, and Google took note of the unacceptably high level of online piracy taking place in Singapore and also took stock of deterrent measures utilized in other jurisdictions before finally recommending site blocking as the most feasible and cost-effective regulatory means to combat digital piracy.
The Government, for its part, has consistently emphasized the value of strong intellectual property rights protection as an essential component of its ambition to make Singapore the Asian IP Hub, and has repeatedly acknowledged the need for more effective solutions to address copyright piracy.
Minister for Law, K. Shanmugam, for example, cited evidence in parliament following research by Mark Monitor, a division of Thomson-Reuters, that the consumption of online pirated material here is not insignificant, and that in fact Singapore ranked the worst out of fifteen Asia-Pacific countries in per capita infringement. Senior Minister of State for Law, Indranee Rajah SC, noted two years ago that the prevalence of online piracy in Singapore turns customers away from legitimate content and adversely affects Singapore’s creative sector and can undermine our reputation as a society that respects the protection of intellectual property rights.
Sycamore Research and Insight Asia reported in 2014 that almost 70% of 16-24 year olds in Singapore are chronic users of pirated sites. Among the 900 respondents covered by the research, the top reason for engaging in online piracy was that pirated content was available easily and for free. 41% of persistent pirates say that they pirate movies, TV shows and music because there are no enforced laws to stop them. But perhaps even more concerning was a further study that year by Ballarat University in Australia. Piracy websites that target Singaporeans rely on advertising revenues as their means of profit. The Ballarat research noted that 90% of the advertisements displayed on rogue websites in Singapore were categorized as High Risk (e.g. featuring malware, sex industry, gambling, scams, and downloading sites) prompting concerns that new subcultural norms with profoundly negative consequences – including the rise of the online pornography culture and child exploitation material – are being fostered by those sites. When asked what type of advertising they recalled seeing on piracy websites, 58% of 16-18 year olds recalled seeing sex industry advertisements.
The content industry has therefore placed great emphasis on displacing online piracy by making legitimate content available to consumers at a reasonable price, on a timely basis, and through an array of different consumer experiences including in Golden Village’s case discounted admissions to its theaters and global day-and-date releases of major blockbuster hits. Movies and TV programs are now also widely available for catch-up viewing, on-demand downloading for sale or rental, and live streaming across a variety of legal distribution platforms including iTunes, YouTube, Viddsee, Toggle, StarHub TV Anywhere, and Singtel TV Go among several others. Netflix’s recent entry into the local market provides Singapore consumers with even more choice. So balancing the stick along with the carrot is a good way to maintain this momentum and provide assurance to new market entrants about their investments.
Although Singapore’s copyright law already contained provisions allowing rights owners to request network service providers (NSPs) to disable access or remove copyright infringing material from its network by means of ‘take-down’ notices issued to the NSPs, there is no statutory requirement for compliance. Singapore’s NSPs have also contended that take-down notices are inapplicable to them because they do not host the infringing material on their networks, and instead function as a mere conduit for its transmission. Whether or not liability for the underlying infringement extends to the NSPs – particularly where the claim is disputed – has never been litigated in Singapore.
In the meantime, more than 30 jurisdictions in Europe now have legislation in place specifically geared towards copyright infringing sites that avoids the issue of liability (and thus compliance with take-down notices) altogether. These laws premise that although internet service providers (ISPs) may not themselves be responsible for operating the infringing sites or for the vast degree of infringement that those sites facilitate, ISPs are nonetheless best situated to physically prevent any further infringement by ‘pulling the plug’ on those sites to disable their continued access and use by their customers.
The Copyright (Amendment) Act 2014’s provisions in this regard – which were the first of their kind ever passed in Asia and served as precedent for the enactment of similar legislation in Australia last year – recognizes that Singapore’s network service providers (two of whom are also Pay-TV platform operators) are by no means the problem, but are instead integral components of any effective solution. Indeed, the five major NSPs operating in Singapore all participated in the Ministry of Law’s industry and public consultations during the run-up to the enactment of the Copyright (Amendment) Act 2014.
Virtually every government around the world regularly engages in some degree of site blocking as an exercise of its administrative, discretionary authority as an expression of its societal values. The Media Development Authority, for example, presently restricts access to certain mass impact sites which contain content that the community regards as offensive or harmful to Singapore’s racial and religious harmony, or is against national interest. Most recently the government has extended this authority into unauthorized remote gambling websites. None of this has ‘broken the internet’ despite an ongoing harangue of contrary hyperbole that it might.
Content owners in Singapore, including the plaintiffs who obtained the order against Solarmovie, expend considerable resources beyond the cost of simply producing and distributing their creative output in order to protect it. This typically requires extensive and costly investigations and the initiation of legal proceedings where necessary. Content owners and distributors in Singapore have always stood up for themselves, and the recent actions show they’re still willing to do just that.
The High Court’s blocking orders are therefore welcome on a number of levels. The certainty of the outcome now provides an effective basis for future proceedings and represents a welcome next step in the continued evolution of intellectual property rights reform in Singapore. It also bodes well for businesses like Shaw and Golden Village, who need a strong copyright regime within which to operate. A generation ago, Singapore was arguably the epicenter of copyright piracy in Asia until, as a matter of national policy the Government provided an infrastructure to adequately address the problem through the enactment of the Copyright Act 1987. Now, almost thirty years later, a similar framework has been established that bodes well for the next generation of Singapore’s creators.