CRIMINALIZING PRIMARY COPYRIGHT INFRINGEMENT IN SINGAPORE: WHO ARE THE REAL ONLINE CULPRITS

Abstract

It is axiomatic in the international copyright arena for the law to impose criminal liability on secondary acts of copyright infringement. Such acts of infringement (which may also attract civil liability) typically entail the commercial exploitation of infringing copies of copyright material by unlicensed vendors. Take, for example, the ubiquitous street vendor in Bangkok’s hugely-popular Patpong district who, on a daily basis, hawks pirated CDs and DVDs to throngs of foreign tourists. Although street scenes such as these are fairly commonplace and representative of the livelihoods of numerous other unlicensed vendors the world over, the law clearly frowns upon such practices and, for some time now, has imposed penal sanctions on these secondary infringers of copyright.1 The use of the criminal law under such circumstances to aid in the effective enforcement of intellectual property rights is understandable, because the sale of each unauthorised copy of music, film or software will, correspondingly, deprive the relevant copyright owner of the economic benefits of a legitimate transaction. Yet the fact remains that many of these so-called copyright pirates have continued to operate under the present legal environment simply because of high consumer demand; there is, after all, a sizeable global market for illegitimate products of intellectual property. The irony, of course, is this: that whilst it is a criminal offence to trade in illegitimate copies of copyright material, it is – at least under copyright law – not a crime nor an actionable civil wrong to purchase or acquire such copies for private and domestic use.2 However, in light of the rapid advancements in computer, digital and Internet technologies, consumers and other end-users have begun to take things into their own hands. Instead of purchasing illegitimate copies of copyright material from the street vendor, they now discover that it is far more efficient and cost-effective to acquire digital copies for themselves in the privacy of their own rooms from certain Internet websites or through peer-to-peer (P2P) file-sharing networks. They may further decide to share these digital copies with others in the Internet or P2P file-sharing community. In the process, however, they inadvertently expose themselves to civil action for having committed primary acts of copyright infringement, and, in Singapore at least, they may also face criminal prosecution if primary infringers like themselves are found guilty of wilful infringements of copyright. Against this backdrop, the authors will, in this paper, examine the newly introduced criminal provisions in Singapore’s copyright legislation which target primary acts of copyright infringement and will consider, in particular, the consequences of prosecuting offenders pursuant to these provisions in the context of a number of hypothetical scenarios involving acts of infringement committed on the Internet. These Internet-based scenarios are particularly relevant and timely in the present discussion in light of recent reports in the local media concerning – (1) the various measures taken by the Intellectual Property Office of Singapore (and other local agencies) to encourage all companies and businesses to use legal or licensed software in the conduct of their day-to-day business; as well as (2) the recent arrest and prosecution of two individuals in Singapore for allegedly distributing unauthorised music files via an Internet chat program.3 This paper therefore aims to offer an academic perspective of the various types of online activity which, in the authors’ view, will likely attract criminal liability under the new provisions (as well as those which ought not to).