(English) Beyond the Bubble: Lessons for Europe’s Copyright Reform from Singapore
Brussels is often accused of being a bubble. Usually, such claims are made at the Member State level, by those keen to portray the European Union as being out-of-touch and uncaring.
However, it could also fairly be made as concerns the way in which law-makers take account of what is going on elsewhere in the world. Other than frequent assertions about American platforms, there has sadly been little curiosity about the wider world.
This matters. Europe is in a global competition. It owes it to its citizens to perform, by supporting innovation and productivity, today and in the future. Looking at the decisions being taken elsewhere – and the principles that underpin them – is essential.
This article therefore looks to Singapore, a country which ranks in the top three globally for education (according to the OECD’s PISA study) and top globally for innovation inputs in the Global Innovation Index. Given its influential position in Asia, where Singapore goes others are likely to follow.
Singapore launched a consultation into its own copyright laws in autumn 2016, soon after the Commission published the draft Directive on Copyright in the Digital Single Market. It received many replies from all sectors, including creators, publishers, technology companies, libraries and businesses. After two years of reflection, it has now published a report which reflects on input received, and sets out plans for next steps.
The process – and the results – contrast strongly with the situation in Europe in three ways which will be set out below: 1) the focus on the public interest; 2) a concentration on the practical, rather than the theoretical; and 3) an emphasis on simplifying the law to the benefit of users.
Putting the Public Interest First
Singapore’s focus on public interest goals is clear in the approach it has taken to text and data mining. While the European Union is still wrangling over whether to allow companies with legal access to copyrighted works to carry out text and data mining, Singapore has made it clear that the right to read should be the right to mine.
The logic is clear. Text and data mining no more competes with sales of original works than selling paintings competes with sales of paint. Indeed, it can increase demand by allowing users to do more with what they buy or access.
The same goes for the proposed rules to bring Singapore in line with the Marrakesh Treaty. These, notably, include a rejection of the supplementary remuneration provisions which the relevant EU legislation allows Member States to introduce or maintain. Given that such provisions represent a tax on the libraries, charities and others serving people with print disabilities, Singapore’s position is to be applauded.
Caring about What Works
Singapore has also shown its readiness to reject ideas which may work in theory, but which in practice are likely to prove unfair or impractical. In its proposals on education for example, the government suggests that where works are already available online, then it should be possible for teachers to use them in their work. The government rejects proposals to introduce licensing schemes, underlining that collective management organisations tend to have very poor coverage of creators online.
Similarly, it has acknowledged clearly that where other uses do not conflict with original markets – for example preventative copying in libraries, or copying for other internal uses – there should be no question about an exception applying.
This contrasts with the approach in the European Union, which leaves a broad margin for the use of the licensing schemes so clearly excluded by Singapore’s government, and leaves cultural heritage institutions still facing a lack of clarity as to whether they can make internal copies.
Making Things Simple
Finally, Singapore has also focused on simplicity, raising the chances of its laws being consistently and easily applied. In addition to the text and data mining exception above, it has ensured that all library, archive and museum exceptions cannot be overridden by contract terms, and are technology neutral.
Singapore, had already realised the importance of implementing a ‘fair use’ provision as a means of ensuring that copyright both protects the interests of creators and promotes innovation at a time of technological change. The government is now proposing to remove the fifth factor of its fair use test, making it easier to apply. For those who are not familiar with this test, the five factors (of which only the first 4 will remain in place) are:
- The purpose and character of the use, including whether the use is commercial in nature or for non-profit educational purposes;
- The nature of the creative work;
- The amount of the creative work that has been copied, or whether the part that is copied is substantial to the whole of the creative work;
- The effect of the use on the potential market for, or value of, the creative work; and,
- The possibility of obtaining the creative work within a reasonable time at an ordinary commercial price.
It is worth noting, of course, the other proposed reforms referenced above which promise to benefit teachers, innovators and those working to preserve and give access to heritage.
Meanwhile, the EU has created complexity through proposing rules only for digital (rather than physical) uses, through inconsistent application of measures on contract override, and of course through Articles 11 and 13 which, in their current state, look set to strengthen the hand of those who already enjoy a powerful position in the market.
Clearly not all is perfect with the proposals made in Singapore. For example, provisions around banning the sale of set-top boxes which are specifically designed to allow for signal piracy may risk taking with it legitimate products. Nonetheless, this is a far more proportionate and targeted approach to dealing with piracy than those currently promoted in the EU.
What does stand out from Singapore’s proposals is the readiness to weigh up the arguments on the table, and resist those that are impractical, overly complex, or do not serve the public interest. As the government’s report underlines, when creators shared their views, they tended to favour making access and use easier.
It is hopefully not too late for the EU and its Member States to learn from this example.
Featured image by nuevajam