Copyright Law for order?

The following paper was written for my Communications module - Media, Law and Ethics.

According to the Intellectual Property Office in Singapore (IPOS) (2019) Intellectual property refers to “the creations of the human minds” and there exists nine different types of IP, including patents, geographical indications, layout designs of integrated circuits, trademark, plant variety protection, confidential information and trade secrets, designs and copyrights. Importantly, the intellectual property laws credit the novelty of the expressed works and provide legal protection that is internationally recognised. There are several different approaches to understanding intellectual property such as the instrumentalist, consequentialist and proprietary approach, this paper will view and examine copyright from a deontological approach with the consideration of moral principles in modern contexts and will justify them through the usage of examples in the current digital and information age, specifically pertaining to the liberal democratic context of Singapore. Notedly, the Singaporean government and content producers and owners strongly push for the enforcement of copyright laws, evident from the unveiling of the 10-year master plan that will “guide the country towards becoming a Global IP Hub in Asia” to push for business and economic development (IPOS, 2017). The concept of copyright will be analysed in two ways, the first looks at copyright as a necessary evil using Kant’s Categorical Imperative, discussing if copyright laws which protect only the form in which ideas, opinions, information or facts are expressed, and not the ideas themselves prevent monopolies or grant them; whereas the second argument views copyright as a balance using Confucius’ Golden Mean, weighing the freedom to use existing ideas and the incentive to create.

The concept of intellectual property law that copyright only applies for ideas that have been materially expressed is highly debated on as it signifies that the ideas must be manifested physically in two kinds of things which include the tangible materials that have been traditionally protected by copyright law such as “literary, dramatic, musical and artistic works” or subject matter other than works like “sound recordings, films, broadcasts and published editions of works” (Lindsay, 1995, p. 74).

The controversiality of the copyright law lies in that the notion of ideas not falling under the jurisdiction to be protected but the expression of it through works to which is given rise by the ideas exists. This has been highly discoursed and is best exemplified by in the journalism scene in which different publishing press release articles that are based on and contain the same information but are published in changed formats and styles (Lindsay, 1995, p. 74), while the ideas behind the published articles are the same, the expression of them are not and, hence, the protection would only be justified for the respective written expression of the news instead of the news incident itself.

Boldrin and Levine (2008, p. 132) believe that copyright is an unnecessary evil because the monopoly of functional innovations results in “intellectual inefficiency” as it deters the development of other latently practical originations. Hence, they believe that copyrights and patent are a “double-edged sword,” with monopolies creating a greater reward for innovators, however, at a higher cost for creation.” This, thus, divulges that the current legal enforcements and laws in place for copyright is insufficient and inadequate in protecting rights. McGrail (2010, p. 70) believes that the copyright laws which were formulated in the “analog” age are now becoming obsolete in the Digital Age as it “actively stifles creativity [through] its bias toward content owners and its legal vagueness”. This argument, hence, follows Kant’s Categorical Imperative since this paper believes that the morality of intellectual property rights should only be grounded on whether the protection is distinctly right or wrong under the series of copyright laws. Instead of solely justifying copyright from the perspective of the government who seeks to maximise the happiness of the majority, the copyright laws are in place to protect the individual owners of intellectual property.

An apt example for this is the piracy of the movie, Dallas Buyers Club, in Singapore in 2015. The legal owners of the movie, Voltage Pictures, a major Hollywood studio filed a lawsuit against Internet users in Singapore in illicitly distributing their film, Dallas Buyers Club. (Tham, 2015) Reportedly, over “500 Singapore Internet Protocol (IP) addresses of Internet subscribers have been identified as illegal downloaders” (ibid). Illegal downloads and piracy directly infringe Singapore Statutes, under sections 113 and 136 of the Copyright Act of 2006 (Attorney-General’s Chambers and the Managing for Excellence Office, 2019).

It must be conceded that on the government’s part, there have been some legal attempts to get up to date with the millennial digital era through means such as updating existing copyright laws, implementing new legal systems and driving for social awareness and change. For instance, the Copyright (Amendment) Act of 2014 that seeks to improve existing laws in Singapore to clarify ambiguous terms and enhance the protection of intellectual property in Singapore and ensuring that their legal owners receive full credits and are properly attributed for their works. Instrumentally, content owners can apply and obtain a High Court order to get telecommunication companies in Singapore such as StarHub, Singtel and M1 to block piracy websites which they were not able to do so prior to the law’s revision.

Additionally, new laws have also been implemented to protect intellectual property such as the creation of the Intellectual Property (Dispute Resolution) Bill that was drafted through consultations in the parliament with the public. This bill serves as an amendment to the Arbitration Act of 2002 (Singapore Statutes Online, 2019) by adding an entirely new Part to the original Act. Supposedly, this new Bill seeks to enhance the IP dispute resolution system in Singapore by simplifying the system, making it more efficient and convenient for patent application and clarifying that IP disputes can be resolved outside the courts in Singapore (Ministry of Law, 2019). The Singapore government has been driving for social awareness and evoking changes within and about the media and communication industries such as through the implementation of the Protection from Online Falsehoods and Manipulation Act of 2019 to help counter the spread of false information such as through deepfakes circulating online that may fall under intellectual property.

The second examination of the concept is based on the concept of balancing the freedom of utilising existing ideas and the incentive to innovate. This is highly attributed to the free-riding problem. In economics, qualitative representation of graphs explains how market failure would result from free riding. When people “free-ride” in terms of intellectual property and by the guidelines of copyright laws, capital and resources in terms of innovation and originality are used without being paid for. Hence, the producers of works are not earning their keeps and due profits. This argument hence follows Confucius’ Golden Mean which upholds the belief that the moral virtue for copyright lies in the appropriate location between two extremes, favouring neither the copyright owners nor the copyright users.

According to the Law Society of Upper Canada (2004), the [international] Copyright Act serves two purposes but is presented frequently as a “balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator” and that the “proper balance lies not only in recognizing the creator’s rights but in giving due weight to their limited nature”. However, the current system in Singapore takes a one-size-fits-all approach that is outdated and no longer effective in the modernised millennia that involves cutting-edge technology that enables media and communication tools to be easily accessible. As such, copyright issues have arisen due to misunderstandings and from the lack of awareness. For example, Twelve Cupcake reposting the articles published by the Singapore Press Holdings’ two press, the Shin Min Daily News and Simply Her Magazine, on their social media page for publicity in 2012. Following that, the Singapore Press Holdings have clarified that they do not “object to individuals reproducing its articles for personal use, but will expect to be paid licensing fees if they are reproduced and its copyright exploited, for commercial use” (AsiaOne, 2012), which was not done by Twelve Cupcakes. The owners of the shop were unaware of the copyright legislation in Singapore, under which, “the copyright for a piece of work belongs to the author and not the person who provided the information or granted the interview.” (ibid)

In the past, visual representation and written works could only exist and be found on physical papers such as through the print media, but now, they can easily be spread and distributed online. Hence, the government must find a middle ground that would ensure that the rights of copyright owners are not infringed while allowing for copyright users to use and benefit from their innovation. Another example from the Singapore context is that of singer and actress Rosanne Wong who found her wedding photos being used at exhibitions by the wedding service agency she engaged in 2015 without Wong’s knowledge and consent (Vijayan, 2015). However, in this case, her consent for the usage of the photographs was not needed, despite her being the main subject of the photographs, as section 30(5) of the Copyright Act ensures that the copyright was in favour of the photographer instead of Wong since no prior agreement was made. Hence, this shows that unknowingly, people commit to actions or participate in works that may be produced or reproduced without consent. This is an issue that has been highlighted numerously, possibly due to the advent of technology when it is getting easier and more convenient to “take” pictures or written works and reproduce them without due credits to the relevant owners. Hence, copyright and its laws must exist to act as a balance between the owners and users.

This point is also validated by Bannerman (2016, p. 1) who asserts that “while many of the rights in the copyright package are granted to copyright owners, the copyright bundle also contains, or should contain, principles intended to protect the interests of users of works, and public interests more generally”. This goes to show that copyright is meant to be beneficial for both the producers and consumers of intellectual property. Bannerman (2016, p. 8) also alludes to the huge importance placed on the “interconnectedness of power and knowledge” by postmodern and post[-]structural thinkers. In copyright, power seemingly lies in the hands of the producers whereas the knowledge resides with the consumers of intellectual property. However, it is, in fact, both ways; the producers of intellectual property possess and share knowledge and the consumers have the power to innovate and learn from existing ideas and products. Thus, a balance of both power and knowledge should be achieved through appropriate and effective copyright laws to ensure that the rights of owners are not infringed while providing incentives to spur innovation.

Summing up this paper, copyright can be viewed in two ways, the first as a necessary evil in society that follows Kant’s Categorical Imperative as the ethical principle to decide and support the protection of copyright owners’ rights, using the example of piracy of movies such as Dallas Buyers Club and illustrated that the existing copyright laws may have been outdated but is not entirely obsolete since the Singaporean government has been changing and implementing new laws to match up with the workings of the current digital and information age. The second way sees copyright as a balance, following Confucius’ Golden Mean, to find a compromise between the users of intellectual property and the copyright owners to achieve a symbiotic relationship between the two parties, bringing in examples of Twelve cupcakes using photos from the press and of the bridal photography and videography service provider using the photos of singer-actress Rosanne Wong.

References:

Government of Singapore. (2019). Intellectual Property Office of Singapore. Retrieved from http://www.ipos.gov.sg.

Government of Singapore. (2017). Intellectual Property Office of Singapore. Update to the Intellectual Property Hub Master Plan. Retrieved from https://www.ipos.gov.sg/docs/default-source/about-ipos-doc/full-report_update-to-ip-hub-master-plan_final.pdf

Lindsay, D. (1995). Copyright. In Armstrong, M., Lindsay, D., & Watterson, R. In Media Law in Australia (3rd edition). Melbourne: Oxford University Press. pp.73-97

Boldrin, M. & Levine, D. K. (2008). Against Intellectual Monopoly. Cambridge University Press. 21(6), pp. 130-145. Retrieved from http://jost.syr.edu/wp-content/uploads/6_Azzarelli-SSTLR-Vol.-21-Fall-2009-FINAL.pdf

McGrail, J.P & McGrail, E. (2010). Overwrought Copyright: Why Copyright Law from the Analog Age Does Not Work in the Digital Age’s Society and Classroom. Education and Information Technologies, 15 (2). pp.69-85.

Tham, I. (2015). The Straits Times. Singapore Press Holdings. Dallas Buyers Club suit a legal minefield. Retrieved from https://www.asiaone.com/dallas-buyers-club-suit-legal-minefield

Attorney-General’s Chambers and the Managing for Excellence Office. (2019). Copyright Act. Singapore Statutes Online. Retrieved from https://sso.agc.gov.sg/Act/CA1987.

Attorney-General’s Chambers and the Managing for Excellence Office. (2019). Intellectual Property (Dispute Resolution) Bill. Singapore Statutes Online. https://sso.agc.gov.sg/Bills-Supp/17-2019/Published/20190708?DocDate=20190708

Government of Singapore. (2019). Ministry of Law. New Bill to Enhance IP Dispute Resolution in Singapore. Retrieved from https://www.mlaw.gov.sg/content/minlaw/en/news/press-releases/new-bill-to-enhance-ip-dispute-resolution-in-singapore.html

CanLII. (2004). Law Society of Upper Canada v. CCH Canadian Limited. Retrieved from http://www.canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.pdf

AsiaOne. (2012). SPH responds to cupcake controversy. Retrieved from https://www.asiaone.com/News/Latest%2BNews/Singapore/Story/A1Story20120707-357755.html

Vijayan, K. C. (2015). The Straits Times. Singapore Press Holdings. ‘Ensure copyright’ of wedding photos.

Bannerman, S. (2016). Introduction & Access to News. In International Copyright and Access to Knowledge. Cambridge: Cambridge University Press. pp.1-12; 80-98.