Potential Expansion of Singapore’s TDM Exception?

Singapore’s text and data mining exception (“TDM exception”) has drawn much international attention because it is much broader than the equivalent exceptions in most other jurisdictions. This is because the exception extends to both non-commercial and commercial organisations, with no restriction as to the purposes for which TDM is carried out and without the possibility of an opt-out or contractual override. (Read more here.)

It looks like the scope of this exception could potentially be further broadened.

The Singapore Ministry of Law and the Intellectual Property Office of Singapore are jointly conducting a public consultation on the exceptions in the Singapore Copyright Act 2021 involving access control measures. Access control measures are technologies, devices or components which control access to works and prevent copyright infringement. The Copyright Act prohibits the circumvention of access control measures as well as the supply of products and services that allow others to do so, subject to certain exceptions.

In the public consultation, feedback is sought on, amongst other issues, whether the prohibition on circumventing access control measures is “likely to impair or adversely affect” any dealings with copyright works that have been newly identified in the Copyright Act as a permitted use. Amongst these is the use of works for computational data analysis within the ambit of the TDM exception.

Notably, one of the few requirements for the exception to apply is that the user must have had “lawful access” to the work. Whilst “lawful access” is not defined in the Copyright Act, it is generally understood that circumventing an access control measure would make any access to a work unlawful so that the exception would not apply. This being the case, a conclusion that maintaining the prohibitions against circumventing access control measures in this context would impact or adversely affect the ability to use works for TDM purposes seems unavoidable. It is unclear from the public consultation paper (accessible here) whether the intention is to remove or relax these prohibitions in that case.

Currently, copyright rightsholders can avoid their works being caught by the TDM exception by putting in place an access control measure. If the prohibition against circumventing access control measures is removed or relaxed where works were to be used for TDM purposes, then this may no longer be good enough.

The consultation period ends on 19 May 2024. Concerned parties are encouraged to put in submissions. Please reach out if you would like to have a chat.

This article is produced by our Singapore office, Bird & Bird ATMD LLP. It does not constitute as legal advice and is intended to provide general information only. Information in this article is accurate as of 25 April 2024.