We are pleased to bring to you this book review of David Llewelyn, Gladys Tan, Estelle Moh Huixuan and Ng Hui Ming’s ‘Modern Law of Copyright in Singapore’, (SAL Academy Publishing, 2023) by Prashant Reddy T. Prashant is an advocate and one of our most prolific bloggers (His posts can be accessed here). He is also the co-author of two books- “Create, Copy, Disrupt: India’s Intellectual Property Dilemmas” (OUP, 2017) and “The Truth Pill: The Myth of Drug Regulation in India” (Simon and Schuster India, 2022).
Book Review: Modern Law of Copyright in Singapore
By Prashant Reddy T.
Earlier this year, the Singapore Academy of Law published a treatise on Singapore’s new copyright law enacted in 2021. Titled ‘Modern Law of Copyright in Singapore’, the treatise is authored by David Llewelyn, Gladys Tan, Estelle Moh Huixuan and Ng Hui Ming. The lead author is likely a familiar name to many readers, since he is also the co-author of two famous treaties on English IP law: W. Cornish, D. Llewelyn and T. Alpin, Intellectual Property: Patents, Copyright, Trademarks & Allied Rights(now in its 10th edition) and Kerly’s Law of Trade Marks and Trade Names, the first edition of which was published in 1894 and is now in its 17th edition.
Prof. Llewelyn resides in Singapore and is a Professor at the School of Law, Singapore Management University (SMU). He also has his own legal practice in Singapore, apart from being an IP adjudicator at the Intellectual Property Office, Singapore and an arbitrator in commercial disputes. He is also regularly appointed as amicus curiae by the courts in Singapore, including the Court of Appeals, in different intellectual property law cases. I had the pleasure of collaborating with him on a couple of projects during a year I spent at the School of Law at SMU.
Moving on to the review of treatise, the authors are careful to explain that they do not seek to “reinvent the wheel” by repeating the subject matter of George Wei’s treatise published in the year 2000 on the older Singaporean copyright law enacted in 1987. The focus of their new treatise is on developments since 2000, with a central focus on the new copyright law enacted in Singapore in 2021. The authors also explain that the focus is on jurisprudence generated in Singaporean courts with only a tangential reference to precedents in other common law countries. I suppose most academics in post-colonial countries understand the need for such disclaimer. As with India, the practice in Singapore has been to rely extensively on precedents in other common law countries like the United Kingdom, United States, Canada and Australia. While there are merits to relying on foreign precedents from other jurisdictions, it is a delicate exercise that must never forget the uniqueness of local context. It is welcome to see scholarship in Singapore trying to centre the discussion around domestic jurisprudence being generated by Singaporean courts.
The treatise is structured like any other in common law countries. It is spread across 17 chapters starting with a general primer on Singaporean copyright law before moving on to more detailed chapters on each aspect of Singaporean copyright law such as originality, infringement of copyright, exceptions, performances etc. There is also a chapter on “transactions involving copyright and performance rights” which covers issues such as assignment, testamentary disposition, licensing, mortgages and charges. This chapter is definitely useful for readers from other common law jurisdictions.
While it is not possible to engage in depth with all the arguments in a treatise such as this, I thought it would be interesting to point out how far Singapore and India diverged from each other despite starting from the same point, which is the Imperial Copyright Act, 1914 that applied to all British colonies, with some variations.
After India became independent in 1947, a new Copyright Bill was proposed in 1955 and enacted in 1957. The original bill had proposed a break from British copyright law and the Berne Convention but as I have written elsewhere a group of writers and authors, including some who were Members of Parliament forced the government to walk back on provisions which would have put India in breach of the Berne Convention. Since then, India’s Copyright Act has been amended primarily to expand the rights of owners, authors and performers. Along the way there have been some victories for the print impaired, intermediaries and the general public. But generally, on limitations and exceptions, Indian copyright law has been quite conservative (and ineffective!), despite the long list of enumerated exceptions in Section 52.
Singaporean copyright law has followed a different trajectory. After breaking away from Malaysia in 1965, Singapore under its legendary Prime Minister Lee Kuan Yew managed a transition to a developed country in the span of a generation. However, its copyright law was upgraded only in 1987, with the latest legislation enacted in 2021 being the third major iteration since independence. During this time, Singapore, despite being a developed country that is very conscious of maintaining a “IP friendly” reputation, has been far bolder than India in carving out some well thought out, user-friendly provisions in its copyright law, two of which are discussed below.
The first provision, introduced in 2021, is the text and data mining provision for the purposes of computational data analysis. This provision allows those with access to a lawful copy (which is broadly defined) to make copies for the purpose of crunching data using computers, regardless of whether the use is commercial or not. There are of course several qualifications to this exception which are best understood by reading the treatise. The authors of the treatise, also mention that this exception was introduced with an eye on its potential to make Singapore more attractive for research on artificial intelligence (AI). As a brief segue, I would like to reference a law review article I authored with Shamnad many moons ago on how the broad experimental use exception in Indian patent law could act as an incentive to attract more companies to conduct risk-free R&D in India without having to worry about patent infringement lawsuits. Both these examples are useful reminders on being mindful about the usual rhetoric of how broader IP rights is always good. Sometimes, well carved out exceptions in IP laws can serve national economic policy goals without harming incentives for innovation.
The second provision, introduced in 2021 is S. 188. This is quite a remarkable provision in that it declares void any contractual clause that declares a foreign law as the governing law of a contract with the aim of circumventing permitted uses allowed under domestic Singaporean copyright law. For example, an academic press based in the United Kingdom licensing access to its database to customers in Singapore, will likely choose British law as the governing law of the contract, rendering Singaporean copyright law redundant. Except under S. 188 if it can be established that the copyright owner chose British law to govern the contract specifically to avoid “permitted uses” allowed under domestic Singaporean domestic law, the choice of law clause would be void. The authors of the treatise warn that it will be “extremely difficult” to establish that the choice of law clause was incorporated to circumvent permitted uses under Singaporean law. Nevertheless, it is an interesting provision that is likely to open a pandora’s box for international copyright law if and when it is actually invoked by Singaporean courts.
There is much more in Singaporean copyright law that is interesting but I will stop here. I would recommend buying Modern Law of Copyright Singapore for your library if you are a lawyer advising on transactions in the Singapore/APAC region or if you are an academic studying copyright law. In particular, if you are an academic who believes in the comparative law method, this treatise definitely deserves a place on your bookshelf.
A copy can be purchased here.