Copyright Act 1987 (Singapore)/Part V

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PART V
REMEDIES FOR INFRINGEMENTS OF COPYRIGHT

Division 1—Preliminary

Interpretation

118.—(1) In this Part,

“action” means a proceeding of a civil nature between parties, and includes a counterclaim.

(2) In the application of this Part in relation to a counterclaim, references to the plaintiff and to the defendant shall be read as references to the defendant and to the plaintiff, respectively.

Division 2—Actions by Owner of Copyright

Actions for infringement

119.—(1) Subject to this Act, the owner of a copyright may bring an action for an infringement of the copyright.

(2) Subject to this Act, the relief that a court may grant in an action for an infringement of copyright includes an injunction (subject to such terms, if any, as the court thinks fit) and either damages or an account of profits.

(3) Where, in an action for infringement of copyright, it is established that an infringement was committed but it is also established that, at the time of the infringement, the defendant was not aware, and had no reasonable grounds for suspecting, that the act constituting the infringement was an infringement of the copyright, the plaintiff shall not be entitled under this section to any damages against the defendant in respect of the infringement, but shall be entitled to an account of profits in respect of the infringement whether any other relief is granted under this section or not.

(4) Where, in an action under this section—

(a) an infringement of copyright is established; and

(b) the court is satisfied that it is proper to do so, having regard to—

(i) the flagrancy of the infringement;

(ii) any benefit shown to have accrued to the defendant by reason of the infringement; and

(iii) all other relevant matters,

the court may, in assessing damages for the infringement, award such additional damages as it considers appropriate in the circumstances.

Delivery up of infringing copies

120. Subject to this Act, the court may, in addition to any relief granted under section 119 in any action for an infringement of copyright brought under that section, order—

(a) any infringing copy, or any plate or similar contrivance used or intended to be used for the making of infringing copies of sound recordings or audio-visual productions, in the possession of the defendant or before the court to be delivered up to the plaintiff; or

(b) the defendant to pay to the plaintiff such damages as the court thinks just and equitable.

Division 3—Proceedings where Copyright is subject to Exclusive Licence

Interpretation

121. In this Division—

“if the licence had been an assignment” means if, instead of the licence, there had been granted (subject to conditions corresponding as nearly as practicable with those subject to which the licence was granted) an assignment of the copyright in respect of its application to the doing, at the places and times authorised by the licence, of the acts so authorised;

“the other party” means—

(a) in relation to the owner of the copyright — the exclusive licensee; and

(b) in relation to the exclusive licensee — the owner of the copyright.

Application

122. This Division shall apply to proceedings in relation to a copyright in respect of which an exclusive licence has been granted and is in force at the time of the events to which the proceedings relate.

Rights of exclusive licensee

123. Subject to the provisions of this Division, the exclusive licensee shall, except against the owner of the copyright, have the same rights of action as the owner of the copyright would have, and be entitled to the same remedies as he would be entitled to, by virtue of sections 119 and 120 if the licence had been an assignment, and those rights and remedies are concurrent with the rights and remedies of the owner of the copyright under those sections.

Joinder of owner or exclusive licensee as a party

124.—(1) Where—

(a) an action is brought by the owner of the copyright or by the exclusive licensee; and

(b) the action, insofar as it is brought under section 119, relates, in whole or in part, to an infringement in respect of which the owner and the licensee have concurrent rights of action under that section,

the owner or licensee, as the case may be, shall not be entitled, except with the leave of the court, to proceed with the action, insofar as it is brought under that section and relates to that infringement, unless the other party is joined as a plaintiff in the action or added as a defendant.

(2) This section shall not affect the granting of an interlocutory injunction on the application of the owner of the copyright or the exclusive licensee.

Defences available against exclusive licensee

125. In an action brought by the exclusive licensee by virtue of this Division, a defence under this Act that would have been available to a defendant in the action if the action had been brought by the owner of the copyright shall be available to that defendant as against the exclusive licensee.

Assessment of damages where exclusive licence granted

126. Where an action to which section 124 applies is brought and the owner of the copyright and the exclusive licensee are not both plaintiffs in the action, the court, in assessing damages in respect of an infringement of a kind referred to in that section, shall—

(a) if the plaintiff is the exclusive licensee—take into account any liabilities, in respect of royalties or otherwise, to which the licence is subject; and

(b) whether the plaintiff is the owner of the copyright or the exclusive licensee—take into account any pecuniary remedy already awarded to the other party under section 119 in respect of that infringement, or any right of action exercisable by the other party under that section in respect of that infringement, as the case requires.

Apportionment of profits between owner and exclusive licensee

127. Where—

(a) an action, insofar as it is brought under section 119, relates, in whole or in part, to an infringement in respect of which the owner of the copyright and the exclusive licensee have concurrent rights of action under that section; and

(b) in that action, whether the owner of the copyright and the exclusive licensee are both parties or not, an account of profits is directed to be taken in respect of that infringement,

then, subject to any agreement of which the court is aware by which the application of those profits is determined as between the owner of the copyright and the exclusive licensee, the court shall apportion the profits between them in such a manner as the court considers just and shall give such directions as the court considers appropriate for giving effect to that apportionment.

Separate actions in relation to the same infringement

128. In an action brought by the owner of the copyright or by the exclusive licensee—

(a) a judgment or order for the payment of damages in respect of an infringement of copyright shall not be given or made under section 119 if a final judgment or order has been given or made in favour of the other party directing an account of profits under that section in respect of the same infringement; and

(b) a judgment or order for an account of profits in respect of an infringement of copyright shall not be given or made under that section if a final judgment or order has been given or made in favour of the other party awarding damages or directing an account of profits under that section in respect of the same infringement.

Liability for costs

129. Where, in an action to which section 124 applies, whether brought by the owner of the copyright or by the exclusive licensee, the other party is not joined as a plaintiff (either at the commencement of the action or at a later time), but is added as a defendant, the other party is not liable for any costs in the action unless he enters an appearance and takes part in the proceedings.

Division 4—Proof of Facts in Copyright Proceedings

Presumptions as to subsistence and ownership of copyright

130.—(1) In an action brought by virtue of this Part—

(a) copyright shall be presumed to subsist in the work or other subject-matter to which the action relates if the defendant does not put in issue the question whether copyright subsists in the work or other subject-matter; and

(b) where the subsistence of the copyright is established—the plaintiff shall be presumed to be the owner of the copyright if he claims to be the owner of the copyright and the defendant does not put in issue the question of his ownership.

(2) Where a defendant, without good faith, puts in issue the questions of whether copyright subsists in a work or other subject-matter to which the action relates, or the ownership of copyright in such work or subject-matter, thereby occasioning unnecessary costs or delay in the proceedings, the court may direct that any costs to the defendant in respect of the action shall not be allowed to him and that any costs occasioned by the defendant to other parties shall be paid by him to such other parties.

Presumptions in relation to authorship of work

131.—(1) Where a name purporting to be that of the author of a literary, dramatic, musical or artistic work appeared on copies of the work as published or a name purporting to be that of the author of an artistic work appeared on the work when it was made, the person whose name so appeared, if it was his true name or a name by which he was commonly known, shall, in an action brought by virtue of this Part, be presumed, unless the contrary is established, to be the author of the work and to have made the work in circumstances to which section 30(4), (5) and (6) do not apply.

(2) Where a work is alleged to be a work of joint authorship, subsection (1) shall apply in relation to each person alleged to be one of the authors of the work as if references in that subsection to the author were references to one of the authors.

(3) Where, in an action brought by virtue of this Part in relation to a photograph—

(a) it is established that, at the time when the photograph was taken, a person was the owner of the material on which the photograph was taken or, if the ownership of that material as at that time is not established, that a person was the owner of the apparatus by which the photograph was taken; or

(b) neither the ownership as at the time when the photograph was taken of the material on which it was taken nor the ownership as at that time of the apparatus by which it was taken is established but it is established that, at the time of the death of a person, the photograph was owned by the person or, if the ownership of the photograph as at that time is not established, was in the possession or custody of the person,

the person shall be presumed, unless the contrary is established, to have been the person who took the photograph.

Presumptions in relation to publisher of work

132. Where, in an action brought by virtue of this Part in relation to a literary, dramatic, musical or artistic work, section 131 does not apply, but it is established—

(a) that the work was first published in Singapore and was so published during the period of 50 years that ended immediately before the commencement of the calendar year in which the action was brought; and

(b) that a name purporting to be that of the publisher appeared on copies of the work as first published,

then, unless the contrary is established, copyright shall be presumed to subsist in the work and the person whose name so appeared shall be presumed to have been the owner of that copyright at the time of the publication.

Presumptions where author has died

133.—(1) Where, in an action brought by virtue of this Part in relation to a literary, dramatic, musical or artistic work, it is established that the author is dead—

(a) the work shall be presumed to be an original work unless the contrary is established; and

(b) if it is alleged by the plaintiff that a publication specified in the allegation was the first publication of the work, and that it took place in a country and on a date so specified, that publication shall be presumed, unless the contrary is established, to have been the first publication of the work, and to have taken place in that country and on that date.

(2) Where—

(a) a literary, dramatic, musical or artistic work has been published;

(b) the publication was anonymous or is alleged by the plaintiff to have been pseudonymous; and

(c) it is not established that the work has ever been published under the true name of the author, or under a name by which he was commonly known, or that the identity of the author is generally known or can be ascertained by reasonable inquiry,

paragraphs (a) and (b) of subsection (1) shall apply, in an action brought by virtue of this Part in relation to the work, in like manner as those paragraphs shall apply where it is established that the author is dead.

Evidence in relation to recordings

134. In an action brought by virtue of this Part in relation to copyright in a sound recording, if records embodying the recording or a part of the recording have been supplied (whether by sale or otherwise) to the public and, at the time when records embodying the recording or part of the recording were first so supplied, the records or their containers bore a label or other mark containing a statement—

(a) that a person specified on the label or mark was the maker of the recording;

(b) that the recording was first published in a year specified on the label or mark; or

(c) that the recording was first published in a country specified on the label or mark,

that label or mark shall be sufficient evidence of the facts so stated except insofar as the contrary is established.

Presumptions in relation to maker of film

135. Where the name of a person appeared on copies of a cinematograph film as made available to the public in such a way as to imply that the person was the maker of the film and, in the case of a person other than a body corporate, that name was his true name or a name by which he was commonly known, that person shall, in an action brought by virtue of this Part, be presumed, unless the contrary is established, to be the maker of the film and to have made the film in circumstances to which section 98(3) does not apply.

Division 5—Offences

Offences

136.—(1) A person who at a time when copyright subsists in a work—

(a) makes for sale or hire;

(b) sells or lets for hire, or by way of trade offers or exposes for sale or hire;

(c) by way of trade exhibits in public; or

(d) imports into Singapore, otherwise than for private and domestic use,

any article which he knows, or ought reasonably to know, to be an infringing copy of the work shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 for the article or for each article in respect of which the offence was committed or $100,000, whichever is the lower, or to imprisonment for a term not exceeding 5 years or to both.

(2) A person who at a time when copyright subsists in a work has in his possession any article which he knows, or ought reasonably to know, to be an infringing copy of the work for the purpose of—

(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the article;

(b) distributing the article for the purpose of trade, or for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work; or

(c) by way of trade exhibiting the article in public,

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 for the article or for each article in respect of which the offence was committed or $100,000, whichever is the lower, or to imprisonment for a term not exceeding 5 years or to both.

(3) Any person who, at a time when copyright subsists in a work, distributes, either—

(a) for purposes of trade; or

(b) for other purposes, but to such an extent as to affect prejudicially the owner of the copyright,

articles which he knows, or ought reasonably to know, to be infringing copies of the work, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 3 years or to both.

(4) A person who, at a time when copyright subsists in a work, makes or has in his possession a plate or similar contrivance for the purpose of making sound recordings or audio-visual productions in contravention of subsection (1) which he knows, or ought reasonably to know, that it is to be used for making infringing copies of the work shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 for each plate or contrivance in respect of which the offence is committed or to imprisonment for a term not exceeding 2 years or to both.

(5) Subsections (1) to (4) shall apply in relation to copyright subsisting in any subject-matter by virtue of Part IV in like manner as they apply in relation to copyright subsisting in a work by virtue of Part III.

(6) Any person who for his private profit causes a literary, dramatic or musical work to be performed in public, or causes a cinematograph film to be seen or heard or seen and heard in public, other than by the reception of a television broadcast or cable programme, where he knows, or ought reasonably to know, that copyright subsists in the work or cinematograph film and that the performance constitutes an infringement of the copyright, shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 or imprisonment for a term not exceeding 2 years or to both.

(7) For the purposes of this section, any person who has in his possession 5 or more infringing copies of any work or other subject-matter shall, unless the contrary is proved, be presumed—

(a) to be in possession of such copies otherwise than for private and domestic use; or

(b) to be in possession of such copies for the purpose of sale.

(8) The court before which a person is charged with an offence by reason of a contravention of any of the provisions of this section may, whether he is convicted of the offence or not, order that any article that appears to the court to be an infringing copy and any plate or contrivance used or intended to be used for making infringing copies in the possession of the alleged offender or before the court, be destroyed or delivered up to the owner of the copyright concerned or otherwise dealt with in such manner as the court thinks fit.

(9) If information is given upon oath to a Magistrate that there is reasonable cause for suspecting that there are in any house, premises, vessel or other place any infringing copies of a work or other subject-matter in which copyright subsists (or any plate or contrivance used or intended to be used for making such infringing copies or capable of being used for the purpose of making such infringing copies) by means of or in relation to which any offence under subsection (1), (2), (3) or (4) has been committed, he may issue a warrant under his hand by virtue of which any police officer named or referred to in the warrant may enter the house, premises, vessel or other place and search for and seize any such copy, plate or contrivance; and if a copy, plate or contrivance is seized under this subsection in connection with an offence and—

(a) in proceedings brought under this section in connection with the offence no order is made under subsection (8) as to the copy, plate or contrivance; or

(b) no such proceedings are instituted within 6 months of the seizure,

the copy, plate or contrivance shall be returned to the person in whose possession it was when it was seized or, if it is not reasonably practicable to return it to that person, shall be disposed of in accordance with the law regulating the disposal of lost or unclaimed property in the hands of police authorities.

Affidavit evidence

137.—(1) An affidavit made before a notary public by or on behalf of the owner of the copyright in any work or other subject-matter and stating—

(a) that at the time specified therein, copyright subsisted in the work or other subject-matter;

(b) that he or the person named therein is the owner of the copyright; and

(c) that the copy of the work or other subject-matter annexed thereto is a true copy thereof,

shall be admitted in evidence in any proceedings for an offence under this Part and shall be prima facie proof of the matters stated therein until the contrary is proved, and the court before which such affidavit is produced shall presume that the affidavit was made by or on behalf of the owner of the copyright.

(2) If an accused to any proceedings for an offence under this Part desires in good faith that the person who made an affidavit referred to in subsection (1) be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the proceedings unless the person appears as a witness for such cross-examination or the court before which the proceedings is being conducted, in its discretion, permits the affidavit to be used without the person so appearing.

Powers of police officer

138.—(1) Any police officer may arrest without warrant any person who, in any street or public place—

(a) sells or exposes or offers for sale; or

(b) has, or is reasonably suspected of having, in his possession for the purpose of selling or letting for hire,

any infringing copy of any work or other subject-matter.

(2) Any police officer may stop and search and forcibly board any vehicle in which he reasonably suspects that there is any infringing copy of any work or other subject-matter and seize, remove or detain any such infringing copy and anything which appears to him to be or to contain, or likely to be or to contain, evidence of an offence under this Act.

Advertisement for supply of infringing copies of computer programs

139.—(1) Any person who, by any means, publishes, or causes to be published, in Singapore an advertisement for the supply in Singapore (whether from within or outside Singapore) of a copy of a computer program which is an infringing copy shall, unless he proves that he acted in good faith and had no reasonable grounds for supposing that copyright would or might thereby be infringed, be guilty of an offence and shall be liable on conviction to a fine not exceeding $20,000 or to imprisonment for a term not exceeding 2 years or to both.

(2) For the purposes of this section, a transmission of a computer program that, when received and recorded, will result in the creation of a copy of the computer program shall be deemed to constitute the supply of a copy of the computer program at the place where the copy will be created.

Court for trial of offences

140. Notwithstanding the provisions of any written law to the contrary, a District or Magistrate’s Court shall have jurisdiction to try any offence under this Act and award the full punishment for such offence.

Division 6—Miscellaneous

Limitation of actions in respect of infringement of copyright

141. An action shall not be brought for an infringement of copyright, after the expiration of 6 years from the time when the infringement took place.

Restriction of importation of copies of works

142.—(1) The owner of the copyright in a published literary, dramatic or musical work, cinematograph film or sound recording may give notice in writing to the Trade Development Board (referred to in this section as the Board) stating—

(a) that he is the owner of the copyright in the work, cinematograph film or sound recording; and

(b) that he objects to the importation into Singapore, during a period specified in the notice, of copies of the work, cinematograph film or sound recording to which this section applies.

(2) A notice under subsection (1) shall be of no effect unless the period specified in the notice does not exceed 5 years and does not extend beyond the end of the period for which the copyright in the work, cinematograph film or sound recording to which the notice relates is to subsist.

(3) This section shall apply, in relation to a work, cinematograph film or sound recording, to any copy of the work, cinematograph film or sound recording made outside Singapore the making of which was carried out without the consent of the owner of the copyright in the work, cinematograph film or sound recording.

(4) Where a notice has been given under this section in respect of a work, cinematograph film or sound recording and has not been withdrawn, the importation of copies of the work, cinematograph film or sound recording to which this section applies into Singapore for the purpose of—

(a) selling, letting for hire, or by way of trade offering or exposing for sale or hire, the copies;

(b) distributing the copies—

(i) for the purpose of trade; or

(ii) for any other purpose to an extent that will affect prejudicially the owner of the copyright in the work, cinematograph film or sound recording; or

(c) by way of trade exhibiting the copies in public,

is prohibited and any such copies, if imported into Singapore for any such purpose, may be seized and forfeited to the Government.

(5) Subject to the regulations made under this Act, the Board may permit copies of a work, a cinematograph film or a sound recording that are liable to be seized and forfeited under this section to be delivered to the importer upon security being given to the satisfaction of the Board that the copies will be forthwith exported from Singapore.

(6) The Control of Imports and Exports Act shall apply to the seizure and forfeiture under this section of copies of a work, cinematograph film or sound recording to which this section applies as if the copies were prohibited imports for the purposes of that Act (Cap. 240).

(7) Regulations made under this Act may make provision for or in relation to—

(a) the forms of notices under this section;

(b) the times at which, and the manner in which, notices are to be given;

(c) the giving of information and evidence to the Board;

(d) the payment of fees and the giving of security to the Board and its agents in respect of any liability or expense that may be incurred by the Board and its agents as a result of the seizure of any copy of a work, cinematograph film or sound recording to which a notice under this section relates; and

(e) indemnifying the Board and its agents against any such liability or expense.

(8) For the purposes of subsection (7), the public officers who are authorised under the Control of Imports and Exports Act (Cap. 240) to search for, seize and detain prohibited imports shall be deemed to be agents of the Board.