In more detail
- The draft bill abolishes the distinction between “works” and “subject-matter other than works.” It collectively deals with these matters by issue. This is in contrast with the current Copyright Act, which in two separate parts deals with issues relating to authorial works and with identical issues relating to subject-matter other than works.
- The draft bill changes the term of protection for certain works. For example, all literary, dramatic, musical and artistic works will be protected for 70 years after the death of the creator, regardless of whether the works are published or remain unpublished.
- There are also proposed changes to the term of protection for cinematograph films and anonymous and pseudonymous works and sound recordings, depending on whether these are published or unpublished.
Ownership of commissioned works
- Under the draft bill, the creator (not the commissioning party) has default ownership of commissioned photographs, portraits, engravings, sound recordings and cinematograph films.
New right of attribution
- The draft bill introduces a new right for creators of literary, dramatic, musical and artistic works to be identified in relation to their works, as well as for performers to be identified in relation to their performances.
- The right will be personal to the author or performer, and not transferable. It will also last for the duration of copyright or protection period of a performance, as the case may be, and will not apply to specific works and performances set out in the bill (for example, a computer program).
Enhanced protection for performers
- The draft bill seeks to increase the protection that performers will enjoy under the law.
- A performer's right to prevent the reproduction of his performance will become an unqualified right. In contrast, this is currently qualified by whether the reproducer knew or ought to have known that the reproduction was unauthorized.
- Current exceptions to performers' rights will also be reframed as permitted uses.
- The draft bill restates the general fair dealing exception in the current Copyright Act as a more open-ended general “fair use” exception. All existing specific fair dealing exceptions are retained and restated under this broad exception as purposes for which a work or recording of a protected performance may be fairly used, and subject to the “fair use” factors.
- The draft bill also introduces additional exceptions, including allowing reproduction of copyrighted works for uses required as part of a technical process of using computational data analysis techniques, including text and data mining, analytics and machine learning; and enabling galleries, libraries, archives and museums to make copies of their materials for some purposes, including public exhibition.
Criminalizing the sale of illicit streaming devices
- The draft bill imposes civil and criminal liability on people who engage in commercial dealings with set-top boxes that stream audio-visual content from unauthorized sources.
Empowerment of class licensing scheme for CMOs
- Part 9 of the draft bill empowers MinLaw to establish a class license for all CMOs or class licenses for different classes of CMOs, and to prescribe or alter the conditions of a class license.
- IPOS will administer this scheme and have the power to issue written regulatory directions to a CMO or any officer of a CMO; impose fines for breach of license conditions; and issue cessation orders.
- The feedback gathered from the 2020 public consultation will be taken into account in formulating the specific terms and conditions of the licensing scheme, which will be set out in subsidiary legislation. A further consultation on the specific terms of the licensing scheme will be held in due course.
The draft bill represents a major overhaul of the current Copyright Act.
For example, the proposed restructuring of the act presents its provisions to the public in a more streamlined and accessible manner. The new provisions also align the position for default ownership of sound recordings and films created in the course of employment with authorial works – in both cases, the employer is now the default owner.
The proposed new rights, exceptions and remedies are also intended to provide greater protection for and benefit multiple stakeholders. For instance, the proposal to make the specific “fair use” exceptions subject to the “fair use” factors may make it more difficult for potential infringers to invoke these exceptions. The new right of attribution also represents a major change from the current position where creators have only a right to prevent false attribution of authorship or a performer’s identity.
The empowerment of the regulation of CMOs is also welcome. An efficient collective management system for licensing fees and royalties is essential to encourage the creation of new works. In addition, collective management reduces transaction costs associated with licensing, which in turn promotes access to works on a more cost-effective basis.
Creators and commercial stakeholders alike have long felt the deficiencies in the current unregulated CMO system. It is hoped that the new licensing scheme will introduce clarity and transparency into the CMO ecosystem and reduce information asymmetry, as well as ensure that industry players are held to minimum compliance standards, which will hopefully prevent creators from being gradually disincentivized.
While there are some concerns about the implementation and practicality of the proposed changes, such as in relation to the right of attribution, the draft bill encapsulates long-overdue changes that will hopefully provide adequate protection and reward for creators, while ensuring that copyrighted works are available for societal benefit at large. The proposed principle-based framework also paves the way for a new copyright regime that may be more suited to adapt to rapidly evolving technological changes.
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