Submissions to the Intellectual Property Office of Singapore on its proposed changes to Singapore’s copyright law regarding “equitable right to remuneration
Submissions to the Intellectual Property Office of Singapore on its proposed changes to Singapore’s copyright law regarding “equitable right to remuneration




Public consultation on proposed changes to Singapore’s IP laws (7 Oct 2014):

Right of remuneration for the broadcast, playing or performing of sound recordings in public (Annex 8)

It is submitted that one or some of the following be adopted:


1. Grant to owners of sound recordings the exclusive rights to communicate the work to the public and public performances instead of the proposed “exclusive right to single equitable remuneration”;

2. Create a sui generis right of “equitable remuneration” and to exclude the word “single”; or

3. Create a sui generis right of “equitable remuneration” and grant the right to producers of sounds recordings and performers.

The reasons are:

(1) To grant the exclusive rights to broadcast and perform publicly do not detract from Singapore’s commitment to EU under the EU-Singapore Free Trade Agreement (“EUSFTA”). As the draft treaty does not grant performer’s any right to remuneration, the intention seems to be to grant a right for the record companies to have a new source of income. This is to meet the new needs of the industry in an information age.

(2) Many countries grant the owners of sound recordings the right of broadcasting and public performances. With the ASEAN Economic Community coming into effect in 2015, the copyright law of other ASEAN states should be taken into account. ASEAN countries which grant owners of sound recordings rights to broadcasting and/or public performances include Malaysia and Thailand.

(3) The “right to equitable remuneration” is a different type of right from “exclusive right”. To include the right the right to “a single equitable remuneration” in section 82 is to confuse the two.

“Exclusive right” is the essence of copyright. This is the right to restrict others from certain use. The owner of the right has full power, including the right to waive them. With “the right to remuneration”, the owner merely has the right to payment for use.

(4) Further, the “right to equitable remuneration” is a right granted to different players of the music industry, authors and performers. It has been noted that they are generally self-employed”. The concept is first found in EU Directive on Rental and Lending Rights (92/100/EEC)

(5) The right to “a single equitable remuneration” seems to be a compromise between the interests of different parties. The user merely needs to pay “a single” remuneration which is shared between the performers and producers of phonograms. Without the right of equitable remuneration being granted to performers, the concept of sharing is not needed. Therefore, the word “single” is a redundant.

(6) Singapore is a member of WIPO Performances and Phonograms Treaty (“WPPT”) since 17 April 2005. It should consider its international obligations and take this opportunity to bring its copyright law in line with the provisions of WPPT, in particular, Article 14 and 15.

Conclusion:

To include the “right to remuneration” as a “right to exclusive use” is to confuse the two rights. The word “single” when the right is granted to one party is to double the confusion.

In view of fact that Singapore has acceded to the WPPT, it should take this opportunity to fulfil its international obligations and review its law with regards to:

(a) rights to communicating the work to the public and public performances for sound recordings; and

(b) creating a new right of equitable remuneration for performers.

The users of the sound recordings can merely pay a “single equitable remuneration” which will be shared between the producers of sounds recordings and the performers. This will not unduly increase the financial burden on the users as they currently do not need to obtain any licence, a fortiori, pay for its use for broadcasting and public performances.

The terminologies used in conventions and treaties are often the results of negotiations. They have to incorporate the various concepts from different legal regimes and industry interests.

When legislating, we should not freely adopt them without first ensuring that the concepts already exist in some other terms to avoid confusion. Very often, existing terms are replete with meanings from cases decided by the courts. For concepts which are totally new, we should define them. Therefore, we should consider if we should use phrases “broadcast by wireless means” and define the term “equitable remuneration”.

George Hwang
28 October 2014

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