Thursday, September 15, 2005

MP3's and Singapore Law

Update: See conclusion, before endnotes.
Q. How do I know whether the songs in my computer or MP3 player are legal?

A. If you didn't buy it from a legal site like Soundbuzz, it is probably illegal. Plus, when you buy a CD, the rights only apply to the CD; this means you cannot rip songs out and make them into MP3s for your player.

Generally, it's advisable to check the terms and conditions of use before you make a copy of the songs. -- SOURCE: INTELLECTUAL PROPERTY OFFICE OF SINGAPORE"
[Source: Mr. Brown (blog), 25/08/2005]

Of course, this was first published in the Straits Times around that date. Mr. Brown says that it's originally from the IPOS site, but I could not find it with a search for "rip".

In any case, while IPOS is not wrong, it's not necessarily right, either. This is simply the conservative approach. It's likely that the terms & conditions of that kanYeWest album you just bought did not authorise you to take any actions except to listen to the CD. Copying the CD into mp3 format is undoubtably copying, and therefore you have to fall into one of the defences - this is basically called fair dealing.

Traditionally, Anthony Lim is correct when he says: "the fair use defence in Singapore is limited to very narrow circumstances (reporting news, private study etc)" However, in Singapore the term which has traditionally been used is fair dealing rather than fair use, ("fair dealing" is the term used by the UK, "fair use" is used for the same type of defence in the US) and as a result of the Singapore-US FTA there have been significant changes to copyright law in Singapore.

One of these was the Copyright (Amendment) Act 2004. 1 This Act created a new section 109 in the Copyright Act, which came into force on 1/1/2005, and reads as follows:
109. —(1) Subject to this section, a fair dealing with an audio-visual item for any purpose other than a purpose referred to in section 110 or 111 shall not constitute an infringement of the copyright in the item or in any work or other audio-visual item included in the item.

(2) The purposes for which a dealing with an audio-visual item may constitute a fair dealing under subsection (1) shall include research and study.

(3) For the purposes of this Act, the matters to which regard shall be had, in determining whether a dealing with an audio-visual item, being a dealing by way of copying the whole or a part of the audio-visual item, constitutes a fair dealing with the audio-visual item for any purpose other than a purpose referred to in section 110 or 111 shall include —

(a) the purpose and character of the dealing, including whether such dealing is of a commercial nature or is for non-profit educational purposes;

(b) the nature of the audio-visual item;

(c) the amount and substantiality of the part copied taken in relation to the whole audio-visual item;

(d) the effect of the dealing upon the potential market for, or value of, the audio-visual item; and

(e) the possibility of obtaining the audio-visual item within a reasonable time at an ordinary commercial price.

[Note: Sections 110 and 111 confirm the traditional "criticism", "review" and "reporting news" exceptions.]
This is what will most probably have to be interpreted by the courts if a case of a person ripping a CD he owns into a digital format for his personal use ("simple CD ripping") comes before it today. The portion which we're most concerned with is s109(3), which sets out five factors which the court is to give consideration to. You will note that (a) to (d) are taken almost verbatim from the US Code 2 - (e) is novel. While there does not seem to have been any case involving simple CD ripping, it was recently said by MGM3 in MGM v. Grokster that "at the time the iPod was invented, it was clear that there were many perfectly lawful uses for it, such as ripping ones own CD and storing it in the iPod."

However, the reasons behind that are probably more practical than legal. Prior to this new section 109, it would have been very difficult to fit simple CD ripping into any one of the categories of fair dealing (research, study, criticism, review, news) and the ground was ripe for recording companies to complain that ripping mp3's in Singapore was in contravention of copyright. However - they didn't. This is especially true because a Singaporean firm (Creative Technology) was in fact the first company in the world to create a hard disk based mp3 player. (The Creative Nomad Jukebox; of course, the iPod has eclipsed it, and the newest iPod nano sets new standards.)

Quite apart from the idea that companies might now be prevented from claiming such a right4, the new section 109 makes it harder for them to claim that simple CD ripping contravenes copyright. In my opinion, (a) and (b) allow for simple CD ripping, while (c), (d) and (e) argue against it; but the courts decision is not some mathematical formulation, and I feel that it would be most inequitable if the courts did decide in favour of recording companies. Indeed, possibly the highest barrier against bringing such a suit would be the public relations nightmare it would create.

In any case, I think what might be more of an issue is the new Part XIIIA of the Copyright Act, which has anti-circumvention provisions similar to the much ballyhooed US-DMCA. In brief, this would mean that if a CD was manufactured such that it was not possible to rip it in the usual fashion, it would be illegal to rip it because to do so would be to circumvent the technological measure used prevent ripping. Of course, recording companies don't seem to be releasing corrupted CDs much any longer.

In summation, IPOS does not know if simple CD ripping is actually illegal, contrary to their claims, because until a case comes before the court, both opinions might be valid and nobody knows. So - Rip on! (Only if you want to, this does not constitute legal advice, please make your own decision and go and consult a laywer or call IPOS or mail IPOS or something.5)

Update - 18/09/2005: (Due to a comment by Ivan) I suspect I might have been a little unclear - in each case above, when I referred to a recording company bringing a suit, I was referring to the process in which a recording company might complain to the authorities that an individual is ripping mp3s, and the Prosecutor then deciding to prosecute on the basis that such act is illegal; being an offence according to the Copyright Act. As Ivan rightly pointed out, if the terms and conditions of an album prohibit simple ripping, then you will be in violation of your agreement with the recording company.

I would suggest, however, that being in violation of your agreement with the recording company would have almost no legal effect in the case of simple ripping - a recording company would be mad to bring a civil action in Singapore, because damages would be minimal and even if costs were awarded it is likely that the recording company would be out of pocket by a substantial amount. Unless, of course, they want to make an example.

Also, I just had a peek at the offences under the Copyright Act, (section 136, I hadn't before) and in general they all require some element of trade; unless the extent of the infringment is significant (section 136(3A)). Unfortunately, simple ripping means that the entire work will be copied, so it may be regarded as such. The maxium penalty applicable is a fine of $20,000 and 6 months jail.

End Notes:
1. Singapore seems to have recently decided that suffixing a year to the names of Acts is a good idea. I agree, because then it makes it easier to distinguish which particular Act you're referring to; although I'll admit in most circumstances it qualifies as unnecessary veribiage. Much like this note! In case you're -really- interested, section 27 of the Copyright (Amendment) Act 2004 is the one which repeals and re-enacts section 109 of the Copyright Act.

2. While the new section 109 is most similar to Title 17, Chapter 1, § 107; it must be noted that for a long time those factors (except (e)) were used in section 35 of the Singapore Copyright Act to determine if something was "research or study". However, because it had to be "research and study," the factors were of far more limited use than they are today.

3. This was said by MGM; and while the author of the piece I linked suggests that MGM will be bound to this, that's probably true only for proceedings resulting from MGM v. Grokster.

4. This is the legal concept of estoppel, but for it to apply in these circumstances would probably require some judicial innovation.

5. I suppose I should support, but really, the real problem with almost all mp3 download sites nowadays is that their quality leaves something to be desired. Except perhaps, but the legality of that site is... questionable.