In his reply, "Changes to Copyright Act protect service providers" (ST, Aug 28) to my concerns regarding recent amendments to the Copyright Act, Mr. Pang Khang Chau from the Ministry of Law, appears to be reading the letter of the amendments without appreciating the effect that the changes would have on the behaviour of Internet Service Providers (ISPs) here.
Under the amendments, ISPs which receive a complaint of copyright infringement have two choices: they can remove the offending website and face zero risk or preserve the website and face the risk of additional damages for flagrant infringement of copyright.
Choosing the second would require the ISP to decide what does or does not constitute copyright infringement. Is this a role which the ISP is qualified or willing to perform ?
Mr. Pang asserts that a website owner who suffers harm as a result of having his materials removed could seek redress from the accuser in a civil action.
I find it hard to see how this could be help except when the statutory declaration is blatantly false. In any court action, both sides can make statutory declarations to the best of their belief and in good faith, yet in the end, the court must decide which side will prevail.
Following Mr. Pang's argument, the decision to remove the offending materials is made by the network service provider rather than the complainant.
If that is the case, then the complainant is clearly not responsible for removing the materials.
But the network service provider is also exempted from liability for removing the material "whether or not it is ultimately determined that an act which constitutes an infringement of copyright was carried out". So who then is responsible for the harm caused by removing the website ? Nobody ?
I would like to thank Mr. Pang for bringing the United States' Digital Millennium Copyright Act (DMCA) to my attention.
It states that if after a website is taken down for alleged copyright infringement, the owner of the website files a counter-notice attesting that its use of the material is lawful, the ISP must restore the website within 10-14 business days unless the complainant goes to court to obtain an injunction against the website.
The Singapore amendments are thus only half-similar to the US' amendments. "Take down" provisions were introduced here to protect the interests of copyright owners but no "put back" clauses were included to safeguard the rights of users.
The effect of the Copyright (Amendment) Act 1999 is to tilt the balance of rights between copyright owners and users.
Local subsidiaries of foreign MNCs will largely escape the effects of the amendments as they bypass Singapore ISPs.
But small and medium enterprises (SMEs) and independent knowledge professionals would bear the brunt of these regulations so long as their web presence is provided by Singapore ISPs. One alternative open to them would be to establish a web presence outside Singapore.
It would be ironic if Singaapore's knowledge-based industries join their low-tech cousins and relocate overseas not just because of cost, but also because of an unfavourable legal environment in Singapore.
NGIAM SHIH TUNG
Originally published in the Straits Times, August 31, 1999.