Infringement of Copyright
Under the Copyright Act, there are three types of copyright infringement:
- doing any of the exclusive acts comprised in the copyright (primary infringement)
- authorising the doing of any of the exclusive acts comprised in the copyright (authorising infringement)
- distributing or dealing with infringing articles once they have been made (secondary infringement).
Infringement of copyright occurs when a person, without the consent of the copyright owner, does any of the acts comprised in the exclusive rights of the owner. For an original author’s work, these exclusive rights include reproduction, publication, public performance, communication to the public, making an adaption of the work and commercial rental (see above Section 1.1.3).
It is not necessary that the whole of the work or subject matter in question be copied in order to amount to copyright infringement. Instead, the taking of a substantial part of the work is sufficient to amount to copyright infringement. What amounts to a “substantial part” is a question of fact and degree. The assessment is made by reference to the quality of the part copied, rather than its quantity, relative to the whole of the work. If the part copied is, qualitatively, an important or key part of the copyright work, this would amount to infringement even if this part is quantitatively a small percentage of the entire work.
Under the Copyright Act, a person who, without the consent of the copyright owner, trades in an article knowing that it is an infringing article, is liable for secondary infringement. Two specific acts are prohibited here:
- The importation of the article into Singapore for the purpose of sale, hire, distribution or exhibiting of the article in public by way of trade; and
- The sale, hire or exhibition by way of trade of the article.
To be liable for secondary infringement, a key element is that the person must have knowledge that the article is an infringing article. It is sufficient if the person ought reasonably to know that the article was an infringing copy. For example, where a person has knowledge of circumstances which would put an honest and reasonable man on inquiry but fails to make such inquiries, this would be sufficient for a finding that he had the requisite knowledge.
Liability for copyright infringement is not only limited to the doing of any of the acts comprised in the exclusive rights of the owner. A person who authorises another to commit a primary infringement is also liable under the concept of authorising infringement.
To authorise means to grant or purport to grant to a third party the right to do the act complained of, whether expressly or impliedly. It is not sufficient that the person has merely enabled, assisted or encouraged the third party to do the act complained of. In considering whether a person had authorised infringement, the Court takes into account the following factors:
- Whether the alleged authoriser had control over the means by which copyright infringement was committed and hence, a power to prevent such infringement;
- The nature of the relationship (if any) between the alleged authoriser and the third party;
- Whether the alleged authoriser took reasonable steps to prevent or avoid copyright infringement; and
- Whether the alleged authoriser had actual or constructive knowledge of the occurrence of copyright infringement and/or the likelihood of such infringement occurring.
The factors above only serve as guidelines, and the establishment of any one of the factors alone is not conclusive as to whether there is liability for authorising infringement. The Court will look at all the facts in totality to determine whether or not there is authorisation of infringement.
In addition to civil liability, the Copyright also imposes criminal liability for both primary and secondary infringement. Under the Copyright Act, it is an offence for primary infringers of copyright to commit wilful copyright infringement where the extent of the infringement is significant and/or where the infringement is committed to obtain a commercial advantage. This is punishable by fine of up to $20,000 or to a jail term of up to 6 months, or to both. For repeat offenders, the punishment is a fine of up to $50,000 or to a jail term of up to 3 years, or to both.
In determining if the infringement is significant, the Court will have regard to the following factors:
- The volume of any articles that are infringing copies;
- The value of any articles that are infringing copies;
- Whether the infringement has a substantial prejudicial impact on the owner of the copyright; and
- All other relevant factors.
There is also criminal liability for secondary infringement of copyright. The offences are broad enough to cover a wide variety of acts involved in the commercial exploitation of infringing copies. These include the making of infringing copies for sale, sale, exhibiting in public by way of trade, importation and possession for the purpose of sale or distribution. It is also an offence to distribute infringing articles for purposes of trade or for other purposes which prejudicially affect the copyright owner. The punishment for secondary infringement of copyright ranges from $10,000 to $100,000, with imprisonment terms of up to 5 years.
Consequences of infringement
The Court may grant the following remedies for copyright infringement:
- Damages and/or an account of profits;
- Statutory damages (in lieu of damages or account of profits);
- An order for the delivery up of infringing articles;
- An order for the forfeiture or destruction of infringing articles
An injunction is an order of the Court directing a party not to do certain acts, in this case, to stop infringing the copyright in the work or subject matter. If the person does not abide by the injunction, this could amount to contempt of Court, which is punishable by a fine or imprisonment.
In terms of monetary compensation, the copyright owner is entitled to elect between damages, an account of profits and statutory damages. In relation to damages, the objective of an award of damages is to compensate the copyright owner for the harm caused as result of the wrongful act, as opposed to punishing the infringer. For example, if the copyright owner usually exploits his rights by granting licences to third parties, the licence fees or royalties that are normally charged would form the basis of a claim for damages. The Court may also, if it deems appropriate, award additional damages if the infringement was flagrant.
As an alternative to damages, the copyright owner may be granted an account of profits. The objective of an account of profits is to prevent an unjust enrichment of the infringer at the copyright owner’s expense. In contrast to an award of damages which seeks to compensate the copyright owner for the harm caused, an account of profits seeks to award the copyright owner the profits made by the infringer as a result of his wrongful acts.
The copyright owner may elect for an award of statutory damages in lieu of damages or an account of profits. This is common where the copyright owner is unable to quantify his actual losses, or where actual losses suffered are minimal. The Copyright Act provides for a maximum award of $10,000 for each work or subject matter, subject to a total of $200,000 in aggregate per copyright infringement action. In awarding statutory damages, the Court takes into account the following factors:
- the nature and purpose of the infringing act, including whether the infringing act was of a commercial nature or otherwise;
- the flagrancy of the infringement;
- whether the defendant acted in bad faith;
- any loss that the plaintiff has suffered or is likely to suffer by reason of the infringement;
- the conduct of parties before and during the proceedings;
- the need to deter other similar infringements; and
- all other relevant matters.