Coming Up in Singapore: New Copyright Exception for Text and Data Mining

The Singapore Copyright Act is undergoing a major overhaul. Following an extensive public consultation exercise which began in 2016, the proposed amendments were passed by Parliament on 13 September 2021 and are expected to be enacted into law in November 2021. Amongst the key changes is the introduction of a new exception to copyright infringement for use of works for text and data mining (TDM). This exception will significantly increase the availability of data for TDM, as well as training data for artificial intelligence (AI) programmes. This article discusses the scope of the exception and its limitations and conditions, and what these mean in practice.

Singapore - The (soon-to-be new) kid on the block

Text and data mining (TDM) is generally defined as the automated analysis of large amounts of data to discover patterns, trends and other useful information.

Whilst facts and data do not enjoy copyright protection so that no copyright licence is required to use facts and data per se, the process of TDM may involve the doing of acts which are restricted by copyright - for instance, the making of copies of works for the purpose of extracting the relevant facts and data from the work. In the absence of an exception, the doing of these acts without the copyright owner’s authorisation could amount to infringement.

A number of jurisdictions have introduced specific exceptions for TDM in their copyright legislation, including Japan, and the United Kingdom and, most recently, the EU (as part of the Directive on Copyright in the Digital Single Market) (DSM Directive) with EU Member States being required to implement the rules into their national laws by early June 2021. Singapore will be the newest kid on the block when its TDM exception is introduced in November.

Current position – No specific TDM exception. Fair use to the rescue?

At present, there is no specific TDM exception in the Singapore Copyright Act (SCA).

However, the SCA provides for a “fair use” exception that is closely modelled after the “fair use” provisions in the United States. Under the “fair use” exception, whether any use of a copyrighted work qualifies as a non-infringing “fair use” is assessed according to five factors including, amongst others, the purpose and character of the use and the effect of the dealing on the market for the work.

In the United States, numerous courts have found the reproduction of works in the creation of a database, for TDM and the use of such a database to be non-infringing “fair use”. This is on the basis that the use is “transformative” and so is unlikely to have an adverse impact on the market for the original work.

Therefore, in the absence of a specific TDM exception in the SCA, there could be room to argue that use of copyrighted works for TDM constitutes “fair dealing”. That being said, the Singapore courts have yet to weigh in on this issue. Furthermore, whether any particular use qualifies as a “fair dealing” is highly fact-dependent and must be determined on a case-by-case basis.

A specific exception was therefore thought to be desirable to provide more certainty, given the increasing importance of TDM as a research tool for businesses and for AI application.

The proposed TDM exception

The features of the proposed exception are summarised below:

 


Who can rely on the exception and for what purposes?


Both commercial and non-commercial organisations can avail themselves of the exception, and there is no limitation as to the purposes for which TDM may be performed.


What works?


The exception applies to all types of copyrighted works, including literary, artistic, musical, and dramatic works, sound recordings and films, as well as recordings of performances. Therefore, the exception applies not just to textual works, but also sound and images.


What acts?


The permitted acts include reproducing works for the purpose of “computational data analysis”; and transmitting the works to other persons for the purpose of verifying the results of the analysis carried out by the latter, or collaborative research or study relating to the purpose of such analysis carried out by the latter. 

“Computational data analysis” is defined in the Bill to include:

using a computer program to identify, extract and analyse information or data from the work; and

using the work as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data (with a specific example being the use of images to train an AI program to recognise images).

The definition is non-exhaustive, which potentially leaves room for arguing that other ancillary activities also fall within the scope of the exception.


What conditions?


However, the exception will only apply if (a) the user had “lawful access” to the copy of the work which he accessed (the “first copy”); and (b) in general, if the first copy is an infringing copy, the user did not know this.


No contractual override


Finally, the exception cannot be excluded or modified by contract. Any contractual term that purports to exclude or restrict the operation of the exception will be void and unenforceable.

This prohibition against contractual override applies not only to contracts concluded after the changes are enacted, but also existing contracts. It also applies not only to Singapore law-governed contracts, but also contracts governed by foreign law “where the choice of foreign law is wholly or mainly to evade any copyright exception”.

Notably, the TDM exceptions in the UK and under the EU DSM Directive mainly benefit non-commercial entities. In the UK, the exception permits the making of copies of works for non-commercial research only. Under the DSM Directive, the exception extends to commercial entities. However, where the user is not a research organisation or a cultural heritage institution, the copyright owner can opt-out by making appropriate provisions in the contract.

The Singapore approach - in extending the exception to both non-commercial and commercial organisations with no limitation as to the purposes for which the TDM is carried out (e.g., research), and disallowing contractual override in all cases, is much more permissive. This means that the exception will be of greater utility to businesses and will be able to significantly lower the cost of TDM research and AI development in Singapore, though the approach has understandably caused some concern.

Observations and practical tips

The exact ambit of the exception is not entirely clear at the moment. For instance, the terms “lawful access” and “computational data analysis” are open to interpretation. Further, in relation to the prohibition against contractual override, it is unclear how it is to be determined that “the choice of foreign law is wholly or mainly to evade any copyright exception”. More clarity is expected when the exception has come into force and jurisprudence in this area is developed over time.

For now, below are some observations and practical tips based on the draft provisions:

  • In permitting not only the making of copies of works but also the transmission of the same to other persons for specific purposes, the exception caters for the scenario where the user is part of a research team or engages a third party vendor to assist with the process. If such other persons wish to make further copies of the works and to supply the works to yet other third parties, they will themselves need to have “lawful access” to the work.

  • “Lawful access” is not defined in the draft provisions. Helpfully, the term is also found in the equivalent exception in the EU DSM Directive, where it is defined as “access to content based on an open access policy or through contractual arrangements between rightsholders and [the user]”. Therefore, the requirement is likely to be satisfied where the work is made publicly available online, or where it is obtained via a subscription or other lawful means. On the other hand, access would be unlawful if it was by circumventing a paywall or other technological protection measures (e.g., copy protect mechanisms). However, given the absence of a definition, the exact ambit of “lawful access” is uncertain.

  • The ambit of “computational data analysis” also remains to be seen. For instance, it is unclear if use of works for “computational data analysis” includes using a work which was part of the training data for an AI system to verify or validate the output of the AI system (e.g., to understand how the algorithm has reached a certain decision), and the delivery of a copy of the work to the customer in order that he may perform such verification or validation. Whilst it may be possible to argue that the former activity is covered (because it forms part of the “analysis”), the latter activity is unlikely to be covered, in which case a licence will be required.

  • The exception applies only to acts performed in Singapore. If part of the TDM activities are to be carried out outside Singapore - whether by the same user, another part of the research team or a vendor - those activities would be governed by local law in the foreign jurisdiction, so that the appropriate licences and permissions would need to be obtained if the local law does not provide for an equivalent exception.

  • Finally, owing to the bar against contractual override, once a user complies with any conditions for gaining lawful access to a work (such as signing as a subscriber and/or making payment), he will be entitled to use the work for TDM purposes even if the terms of use expressly prohibit this. Content owners may wish to relook their business models and, where necessary, price-in the possibility that the licensed works may be used for TDM.

This update is produced by our Singapore office, Bird & Bird ATMD LLP, and does not constitute legal advice. It is intended to provide general information only. Please contact our lawyers if you have any specific queries.

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