I REFER to Mr Harish Pillay's letter "Concerns about Copyright Act" (ST, Dec 22) and Mr Ngiam Shih Tung's letter "Copyright law is efficient but is it fair?" (ST, Dec 27).
Mr Pillay said the amendments were made in a rush. The whole process, in fact, took nearly 1-1/2 years.
A working committee was formed in mid-1998. Parliament passed the amendments only in August this year, and the amendments became effective this month.
The committee comprised representatives from various government agencies, the academia and the media.
The amendments were proposed after a year of deliberations and consultations, taking into account the views and opinions of different sectors, including the legal profession and various industry players.
Mr Ngiam paints a picture that website owners will be victimised, that anyone who wishes to harm a website owner can simply put in a spurious complaint and get the website shut down. With the recent amendments, this would not happen.
The provisions on network service provider (NSP) liability provide legal certainty to NSPs.
They protect NSPs from being liable for copyright infringement in which they have played no part, while preserving an avenue of redress for copyright owners and, at the same time, providing safeguards against abuse of this avenue of redress.
Prior to the amendments, the legal position of NSPs was uncertain. NSPs had to take every complaint of copyright infringement seriously.
After the amendments, NSPs need only concern themselves with statutory declarations of infringement which meet the strict requirements laid down in the new law.
The possibility of materials being removed by NSPs on spurious complaints is therefore reduced by the recent amendments.
As the regulations require a copyright owner to identify clearly the infringing materials to be removed, only the specific materials identified by the copyright owner risk being removed.
It is thus unlikely that a notice of infringement will result in an entire website being shut down.
The website owner is also not without his own redress. Making a false statutory declaration is an offence.
A person who has his materials removed by an NSP because of a false declaration can also seek compensation from the declarant in a civil action.
Mr Ngiam disagrees with our explanation of the US Digital Millennium Copyright Act (DMCA) and refers to a summary of the DMCA published by the US Copyright Office.
Like most copyright laws, the DMCA is a highly complex piece of legislation. This is why the summary cautions that it "summarises briefly each title of the DMCA. It provides merely an overview of the law's provisions; for purposes of length and readability a significant amount of detail has been omitted. A complete understanding of any provision of the DMCA requires reference to the text of the legislation itself".
When one reads the legislation itself, it is clear that the "put-back" provision in the DMCA does not provide a substantive right against the NSP. Rather, it relates to the NSP's immunity against lawsuits.
The DMCA confers immunity from lawsuit on an NSP for removing material from its network.
This immunity is taken away if the owner of the removed material files a counter-notice and the NSP fails to "put back" the removed material after the copyright owner has been informed of the counter-notice and does not institute legal action within a certain time.
However, the loss of immunity does not mean that the NSP automatically becomes liable to the owner of the removed materials. All it does is to restore the rights and obligations between the NSP and website owner under their contract.
The DMCA, therefore, does not give any party any right to require the NSP to do anything.
Mr Ngiam draws a parallel between the recent amendments concerning the power of the Customs Department to seize suspected infringing goods and the amendments concerning NSP liability.
This comparison is inappropriate because the former regulates the use of Government powers to seize property, while the latter serves to clarify NSP liability for copyright infringement.
We thank Mr Ngiam and Mr Pillay for their views. These are early days in law-making for the digital environment.
It is not surprising that opinions will differ on how best to craft such laws.
The task at hand is to put the amendments to work, and for the Government to gather empirical data of its workings to be considered when the Copyright Act is next reviewed.
Anyone with views or feedback on the amendments can contact Ms Lee Li Choon of the Intellectual Property Office of Singapore (Ipos) on 330-2706 (tel) or 339-0252 (fax).
PANG KHANG CHAU
Deputy Director
Ministry of Law
Originally published in the Straits Times, January 1, 2000.