Copyright Act 2021/Part 6

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PART 6
REMEDIES FOR AND BORDER ENFORCEMENT MEASURES AGAINST RIGHTS INFRINGEMENTS
Division 1—Remedies for rights infringements

Interpretation of this Division

304. In this Division—

“delivery up order” means an order under section 309(2);

“disposal order” means an order under section 310(1);

“infringement action” means an action for a rights infringement.

Remedies

305.—(1) Subject to the provisions of this Act, the remedies that the Court may grant for a rights infringement include—

(a) an injunction (which may be subject to terms);

(b) damages, including additional damages under section 307;

(c) an account of profits;

(d) if the claimant so elects, statutory damages in accordance with section 308;

(e) a delivery up order; and

(f) a disposal order.

(2) Subject to subsection (3), the remedies in subsection (1)(b), (c) and (d) are mutually exclusive.

(3) Where the Court orders damages (with or without additional damages) under subsection (1)(b) in respect of a rights infringement, the Court may also order an account of profits attributable to the infringement, but only insofar as the profits have not been taken into account in computing those damages.

No damages for innocent rights infringement

306.—(1) Where a person does an act that constitutes a rights infringement, damages may not be ordered for the infringement if, when doing that act, the person does not know and could not reasonably have known that the act is a rights infringement.

(2) To avoid doubt, subsection (1) does not prevent the Court from ordering any other remedy (including an account of profits) for the infringement.

Measure of damages

307. The Court may order additional damages for a rights infringement if it is appropriate in the circumstances, having regard to all relevant matters, including—

(a) the flagrancy of the infringement; and

(b) any benefit gained by the defendant because of the infringement.

Measure of statutory damages

308.—(1) This section applies where a claimant in an infringement action elects for statutory damages.

(2) The amount of statutory damages must not exceed—

(a) $10,000 for each work or performance that is the subject of the action;

(b) $200,000 for all the works that are the subject of the action; and

(c) $200,000 for all the performances that are the subject of the action.

(3) However, subsection (2)(b) and (c) does not apply if the claimant proves that the claimant’s actual loss for all the works or performances that are the subject of the action exceeds $200,000.

(4) If separate and independent works, or recordings of protected performances, are assembled into one whole, they are taken to be one work for the purposes of subsection (2).

(5) In deciding the amount of statutory damages to award, the Court must consider all relevant matters, including—

(a) the nature and purpose of the act constituting the rights infringement, including whether the act is of a commercial nature or otherwise;

(b) the flagrancy of the rights infringement;

(c) whether the defendant acted in bad faith;

(d) any loss that the claimant has suffered or is likely to suffer because of the infringement;

(e) any benefit gained by the defendant because of the infringement;

(f) the conduct of the parties before and during the proceedings; and

(g) the need to deter similar infringements.

Order to deliver up infringing copies, etc.

309.—(1) This section and sections 310 and 311 apply where—

(a) an infringement action is brought; and

(b) any of the following items (called in this section and sections 310 and 311 offending items) is before the Court or in the defendant’s possession:

(i) any infringing copy;

(ii) any article that has been used to make infringing copies.

(2) The Court may order the offending items to be delivered up to the claimant, but only if—

(a) the Court also makes a disposal order; or

(b) it appears to the Court that there are grounds for making a disposal order.

(3) If the Court orders any offending items to be delivered up to a person under subsection (2), the person must retain the items until the Court decides whether or not to make a disposal order.

Order to dispose of infringing copies, etc.

310.—(1) The Court may order the offending items to be—

(a) forfeited to the claimant;

(b) destroyed; or

(c) otherwise dealt with.

(2) Without limiting subsection (1)(c), a disposal order may require offending items to be sold and the proceeds to be divided between interested persons.

(3) In deciding whether to make a disposal order, and the terms of the order, the Court must consider—

(a) whether other remedies would be adequate to compensate the claimant and to protect the claimant’s interests; and

(b) the need to ensure that no item is disposed of in a manner that would adversely affect the claimant.

(4) If the Court decides not to make a disposal order after making a delivery up order, the Court—

(a) must order that the offending items be returned to the person who was last in possession of the offending items before they were delivered up; and

(b) may order the defendant in the infringement action to pay just and equitable damages to the claimant.

Procedure for disposal order

311.—(1) This section applies to proceedings for a disposal order to be made against offending items.

(2) The Court must give directions to serve notice on any person having an interest in any of the offending items.

(3) A person who claims an interest in any of the offending items may appear in the proceedings, even if notice is not served on the person.

(4) If the Court makes a disposal order, any person interested in any of the offending items may appeal against the order, even if the person did not appear in the proceedings for the order.

(5) A disposal order does not take effect until—

(a) the period for giving notice of an appeal against the order expires and no notice of appeal has been given; or

(b) if a notice of appeal is given within the period for giving notice of an appeal—the appeal is finally determined or abandoned.

Remedy for infringement of copyright under section 151

312. Despite any provision to the contrary in this Act, the only remedy for an infringement of copyright under section 151 is an order for the payment of equitable remuneration as determined by a Copyright Tribunal.

{{c|Division 2—Remedies against network service providers
Subdivision (1)—Preliminary

Interpretation of this Division

313. In this Division—

“electronic copy” means—

(a) a work, or a copy of a work, in an electronic form; or

(b) a sound recording, in an electronic form, of a performance;

“network connection provider” or “NCP”—

(a) means a person who provides services relating to, or provides connections for, the transmission or routing of data; but

(b) does not include any prescribed person or class of persons;

“network services provider” or “NSP” means a person who provides, or operates facilities for, online services or network access; and—

(a) includes a network connection provider; but

(b) does not include any prescribed person or class of persons;

“primary network”, in relation to a network service provider, refers to a network controlled or operated by or for the network service provider;

“restoration notice” means a restoration notice that complies with the requirements prescribed under section 323;

“rights owner”, in relation to a copyright, includes any exclusive licensee of the copyright;

“routing” means directing or choosing the means or routes for the transmission of data;

“take-down notice” means a take-down notice that complies with the requirements prescribed under section 323.

Provisions relating to rights infringement not affected

314. This Division does not affect what constitutes a rights infringement.

Subdivision (2)—Restriction of remedies against rights infringements in course of providing network services

Restriction of remedies if conditions met

315.—(1) The purpose of this Subdivision is to restrict the remedies available against a NCP or NSP for rights infringements arising from their activities, but only if certain conditions are met.

(2) If a NCP commits a rights infringement to which section 316 (transmission, routing and providing connections) applies and satisfies the conditions for that section—

(a) the Court may only grant either or both of the following remedies against the NCP in respect of the rights infringement:

(i) an order requiring the NCP to take reasonable steps to disable access to an online location that is physically situated outside Singapore;

(ii) an order requiring the NCP to terminate a specified account; and

(b) to avoid doubt, the Court must not grant any other remedy (including a monetary remedy) against the NCP in respect of the rights infringement.

(3) If a NCP commits a rights infringement to which section 317, 318 or 319 (system caching, storage, and locating information) applies and satisfies the conditions for the applicable section—

(a) the Court may only grant one or more of the following remedies against the NSP in respect of the rights infringement:

(i) an order requiring the NSP to—

(A) remove an electronic copy (being an infringing copy) from the NSP’s primary network; or

(B) disable access to an electronic copy (being an infringing copy on the primary network or another network;

(ii) an order requiring the NSP to terminate a specified account;

(iii) if necessary, some other less burdensome but comparatively effective non-monetary order; and

(b) to avoid doubt, the Court must not grant any remedy (including a monetary remedy) against the NSP in respect of the rights infringement.

(4) In deciding whether to make an order under subsection (2)(a) or (3)(a), and what order to make, the Court must consider all relevant matters, including—

(a) the harm that is or may foreseeably be caused to the claimant;

(b) the burden that the making of the order will place on the NCP or NSP;

(c) the technical feasibility of complying with the order;

(d) the effectiveness of the order;

(e) any possible adverse effect on the business or operations of the NCP or NSP; and

(f) whether some other comparably effective order would be less burdensome.

(5) In this section, “monetary remedy” means damages, an account of profits or statutory damages.

Conditions relating to infringement by transmission, routing or providing connections

316.—(1) This section applies where a NCP commits a rights infringement by—

(a) transmitting or routing, or providing connections for, an electronic copy through the NCP’s primary network; or

(b) any temporary storage of an electronic copy in the course of doing an act under paragraph (a).

(2) The conditions for this section are—

(a) in case of the transmission of an electronic copy—the transmission is not initiated by or at the direction of the NCP;

(b) the act constituting the rights infringement is carried out through an automatic technical process and the NCP does not select the electronic copy;

(c) the NCP does not select the recipients of the electronic copy except as an automatic response to a request by another person;

(d) the NCP does not substantively modify the content of the electronic copy (apart from any modification made as part of a technical process) when the electronic copy is transmitted through the NCP’s primary network; and

(e) any condition as may be prescribed.

Conditions relating to infringement by system caching

317.—(1) This section applies where a NSP commits a rights infringement by making an electronic copy (called in this section the cached copy)—

(a) on the NSP’s primary network;

(b) from another electronic copy that is available on a network (called in this section the originating network);

(c) through an automatic process;

(d) in response to an action by a user of the NSP’s primary network; and

(e) to facilitate efficient access to the underlying work or protected performance (as the case may be) by that user or other users.

(2) The conditions for this section are—

(a) the NSP does not substantively modify the content of the cached copy (apart from any modification made as part of a technical process) when the cached copy is transmitted to users of the NCP’s primary network or another network;

(b) if the NSP is served with a take-down notice that purports to be given by or on behalf of the rights owner of the cached copy—the NSP expeditiously takes reasonable steps to remove or disable access to the cached copy on its primary network; and

(c) any condition as may be prescribed, including conditions relating to—

(i) access to the cached copy by users of the NSP’s primary network or of another network;

(ii) refreshing, reloading or updating the cached copy; or

(iii) non-interference with technology used at the originating network to obtain information about the use of any electronic copies on the originating network, being technology that is consistent with industry standards in Singapore.

Conditions relating to infringement by storage

318.—(1) This section applies where a NSP commits a rights infringement by storing an electronic copy on its primary network (called in this section the stored copy) at the direction of a user of that network.

(2) The conditions for this section are—

(a) if the NSP has the right and the ability to control any rights infringements in relation to the stored copy—the NSP does not receive any financial benefit that is directly attributable to any of those rights infringements;

(b) if—

(i) the NSP knows that rights infringements have been committed in relation to the stored copy;

(ii) the NSP knows about facts or circumstances that would inevitably lead to the conclusion that rights infringements have been committed in relation to the stored copy; or

(iii) the NSP is served with a take-down notice that purports to be given by or on behalf of the rights owner of the stored copy,

the NSP expeditiously takes reasonable steps to remove or disable access to the stored copy;

(c) the NSP has—

(i) designated a representative to receive take-down notices under paragraph (b)(iii); and

(ii) published, in the prescribed manner, the prescribed information about the designated representative; and

(d) any condition as may be prescribed.

(3) In deciding whether a financial benefit is directly attributable to a rights infringement for the purposes of subsection (2)(a), all relevant matters must be considered, including—

(a) industry practice in relation to the charging for services by NSPs; and

(b) whether the financial benefit is greater than the benefit that would usually result from charging in accordance with accepted industry practices.

(4) In deciding whether a NSP knows about the matters in subsection (2)(b)(i) or (ii), the following notices must be ignored:

(a) a notice that purports to be given by or on behalf of the rights owner of the stored copy (other than a take-down notice under subsection (2)(b)(iii));

(b) a notice by the rights owner of the stored copy under section 326(2)(b) (intention to apply for access disabling order).

Conditions relating to infringement by locating information

319.—(1) This section applies where—

(a) an electronic copy (called in this section the main copy) is made available on an online location on a network (called in this section the originating network);

(b) the NSP commits a rights infringement by referring or linking a user of any network to the online location; and

(c) the referring or linking is done by using—

(i) an information location tool (for example, a hyperlink or directory); or

(ii) an information location service (for example, a search engine).

(2) The conditions for this section are—

(a) if the NSP has the right and the ability to control any rights infringement in relation to the main copy—the NSP does not receive any financial benefit that is directly attributable to any of those rights infringements;

(b) if—

(i) the NSP knows that rights infringements have been committed in relation to the main copy;

(ii) the NSP knows about facts or circumstances that would inevitably lead to the conclusion that rights infringements have been committed in relation to the main copy; or

(iii) the NSP is served with a take-down notice that purports to be given by or on behalf of the rights owner of the main copy,

the NSP expeditiously takes reasonable steps to remove or disable access to—

(iv) the main copy; and

(v) any further electronic copies made from the main copy and made available on the NSP’s primary network, but only if the NSP knows about those further copies;

(c) the NSP has—

(i) designated a representative to receive take-down notices under paragraph (b)(iii); and

(ii) published, in the prescribed manner, the prescribed information about the designated representative; and

(d) any condition as may be prescribed.

(3) In deciding whether a financial benefit is directly attributable to a rights infringement for the purposes of subsection (2)(a), all relevant matters must be considered, including—

(a) industry practice in relation to the charging for services by NSPs; and

(b) whether the financial benefit is greater than the benefit that would usually result from charging in accordance with accepted industry practices.

(4) In deciding whether a NSP knows about the matters in subsection (2)(b)(i) or (ii), the following notices must be ignored:

(a) a notice that purports to be given by or on behalf of the rights owner of the main copy (other than a take-down notice under subsection (2)(b)(iii));

(b) a notice by the rights owner of the main copy under section 326(2)(b) (intention to apply for access disabling order).

Conditions do not require monitoring of network services, etc.

320.—(1) The application of sections 315, 316, 317, 318 and 319 does not depend on—

(a) a NSP monitoring its service or affirmatively seeking facts indicating a rights infringement, except to the extent consistent with any standard technical measure; or

(b) a NSP taking any action to gain access to, remove or disable access to any electronic copy in any case where the action is prohibited by law.

(2) In this section, “standard technical measure” means any technical measure accepted in Singapore that—

(a) is used to identify or protect copyright works, protected performances, or recordings of protected performances;

(b) has been developed through an open, voluntary process by a broad consensus of rights owners and NSPs;

(c) is available to any person on reasonable and non-discriminatory terms; and

(d) does not impose substantial costs on NSPs or substantial burdens on their primary networks.

Evidence of compliance with conditions

321.—(1) In proceedings relating to this Subdivision, a NSP may produce evidence—

(a) that is prescribed; and

(b) that suggests that the NSP complied with any condition mentioned in section 316, 317, 318 or 319.

(2) If a NSP produces the evidence mentioned in subsection (1), the NSP is presumed, unless the contrary is proved, to have complied with the relevant condition.

Protection against liability for removing or disabling access to electronic copy under section 317, 318 or 319

322.—(1) If subsection (2), (3) or (4) applies, a NSP is not, despite any contrary written law or rule of law, liable under any rule of law for acting to—

(a) remove an electronic copy from its primary network; or

(b) disable access to an electronic copy on its primary network or another network.

(2) This subsection applies if—

(a) the NSP acted—

(i) in good faith; and

(ii) in reliance on a take-down notice under section 317(2)(b) (system caching); and

(b) any prescribed condition is met.

(3) This subsection applies if—

(a) the NSP acted—

(i) in good faith; and

(ii) in reliance on a take-down notice served by a person (X) under section 318(2)(b)(iii) or 319(2)(b)(iii) (storage or locating information);

(b) the NSP expeditiously takes reasonable steps to—

(i) notify the person (Y) who made the electronic copy available on the relevant network of the removal or disabling; and

(ii) provide Y with a copy of the take-down notice;

(c) the NSP takes the following steps if the NSP is served with a restoration notice within the prescribed time by a person purporting to be or to be acting on behalf of Y:

(i) subject to any written law on privacy or data protection, the NSP expeditiously provides a copy of the restoration notice to X;

(ii) the NSP expeditiously notifies X, stating that the NSP will take reasonable steps to restore the electronic copy or access to the electronic copy, but only if—

(A) the restoration is technically and practically feasible; and

(B) within 10 working days after the notification—

(BA) no proceedings are brought by or on behalf of the rights owner of the electronic copy to prevent the restoration; or

(BB) the NSP is not informed in writing of the proceedings;

(d) the NSP takes reasonable steps to restore the electronic copy, or to restore access to the electronic copy, if the conditions in paragraph (c)(ii) are met;

(e) the steps mentioned in paragraph (d) are taken (if they have to be taken) not less than 10 and not more than 14 working days after the date of the notification in paragraph (c)(ii); and

(f) any prescribed condition is met.

(4) This subsection applies if—

(a) the NSP acted—

(i) in good faith; and

(ii) in reliance on the knowledge mentioned in section 318(2)(b)(i) or (ii) or 319(2)(b)(i) or (ii) (storage or locating information);

(b) the NSP expeditiously takes reasonable steps to notify the person (Y) who made the electronic copy available on the relevant network of the removal or disabling;

(c) the NSP takes reasonable steps to restore the electronic copy or access to the electronic copy, but only if—

(i) the NSP is served with a restoration notice within the prescribed time by a person purporting to be or to be acting on behalf of Y;

(ii) within 10 working days after the date on which the restoration notice is served on the NSP—

(A) no proceedings are brought by or on behalf of the rights owner of the electronic copy to prevent the restoration; or

(B) the NSP is not informed in writing of the proceedings; and

(iii) the restoration is technically and practically feasible;

(d) the steps mentioned in paragraph (c) are taken (if they have to be taken) not less than 10 and not more than 14 working days after the date on which the restoration notice is served on the NSP; and

(e) any prescribed condition is met.

(5) Subsections (1), (2), (3) and (4) apply whether or not it is ultimately decided that the NSP committed a rights infringement mentioned in section 317(1), 318(1) or 319(1).

(6) Despite anything to the contrary in any written law or rule of law, a NSP is not liable under any rule of law if—

(a) the NSP acts in good faith to—

(i) restore an electronic copy to the NSP’s primary network; or

(ii) restore access to an electronic copy on any network; and

(b) the restoration was done in reliance on a restoration notice under subsection (3)(c) or (4)(c)(i).

(7) A NSP must not be treated as authorising an act that is a rights infringement just because one (but not more) of the following circumstances applies:

(a) the NSP provides a facility that is used by another person to do that act;

(b) the NSP is served with a take-down notice under section 317(2)(b), 318(2)(b)(iii) or 319(2)(b)(iii) (system caching, storage or locating information), or a notice under section 326(2)(b) (intention to apply for access disabling order), in respect of that act;

(c) the NSP has the knowledge mentioned in section 318(2)(b)(i) or (ii) or 319(2)(b)(i) or (ii) (storage or locating information) in respect of that act.

Requirements relating to take-down or restoration notices, etc.

323. A take-down notice under section 317(2)(b), 318(2)(b)(iii) or 319(2)(b)(iii) or a restoration notice under section 322(3)(c) or (4)(c)(i) must—

(a) be served in the prescribed manner;

(b) be in or substantially in the prescribed form; and

(c) state the prescribed matters.

Making false statements in take-down or restoration notice

324.—(1) In making a take-down notice under section 317(2)(b), 318(2)(b)(iii) or 319(2)(b)(iii) or a restoration notice under section 322(3)(c) or (4)(c)(i), a person must not make a false statement (whether in or outside Singapore) that—

(a) the person knows is false or does not believe is true; and

(b) touches a point material to the object of the notice.

(2) A person who contravenes subsection (1)—

(a) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both; and

(b) shall be liable in damages to any person who suffers any loss or damage as a result of making that notice, but only to the extent that the loss or damage is reasonably foreseeable as a likely result of making that notice.

(3) If a person makes a statement outside Singapore in contravention of subsection (1), the person may be dealt with under subsection (2)(a) as if the statement were made in Singapore.

(4) Regulations may prescribe how a person may verify statements made in the notices mentioned in subsection (1), and the consequences of performing or not performing the prescribed verification.

Subdivision (3)—Disabling access to flagrantly infringing online locations

Access disabling order

325.—(1) The General Division of the High Court may, on application, order a NCP to take reasonable steps to disable access to an online location (called in this Subdivision an access disabling order) if—

(a) the online location is a flagrantly infringing online location;

(b) the online location has been or is being used to commit rights infringements in relation to copyright works or protected performances of which the applicant is the rights owner; and

(c) the NCP’s services have been or are being used to access the online location.

(2) In deciding whether to make an access disabling order, and the terms of the order, the General Division of the High Court must consider all relevant matters, including—

(a) the harm that is or may foreseeably be caused to the rights owner;

(b) the burden that the making of the order will place on the NCP;

(c) the technical feasibility of complying with the order;

(d) the effectiveness of the order;

(e) any possible adverse effect on the business or operations of the NCP; and

(f) whether some other comparably effective order would be less burdensome.

Procedure for application

326.—(1) This section applies to an application by a rights owner for an access disabling order against a NCP in relation to an online location.

(2) Subject to subsection (5), the rights owner must do the following before making the application:

(a) give notice to the owner of the online location that—

(i) the online location has been or is being used to commit or facilitate rights infringements against the rights owner; and

(ii) if the owner of the online location does not stop the online location from being used in that way within the prescribed time, the rights owner will apply for an access disabling order;

(b) give notice to the NCP that the rights owner intends to proceed to apply for an access disabling order against the NCP, and to do so either—

(i) after the end of the prescribed time mentioned in paragraph (a)(ii); or

(ii) after reasonable efforts have been made to give notice under paragraph (a).

(3) The application must be served on the NCP.

(4) Subject to subsection (5), notice of the application must be given to the owner of the online location.

(5) At the hearing of the application, the General Division of the High Court may dispense with the requirement to give notice under subsection (2)(a) or (4) if—

(a) the rights owner is unable to give notice (whether because the identity or address of the owner of the online location cannot be ascertained or for any other reason); and

(b) the rights owner has made reasonable efforts to give notice.

(6) The owner of the online location has—

(a) the right to be heard in the application; and

(b) the same right of appeal as any party to the application.

(7) Regulations may prescribe—

(a) in relation to the notices mentioned in subsection (2)(a) and (b)—

(i) how a notice must be served;

(ii) the form of a notice;

(iii) the information to be stated in a notice; and

(iv) the manner of verifying statements in a notice; and

(b) what constitutes reasonable efforts for the purposes of subsection (2)(b)(ii).

Variation and revocation of order

327.—(1) The General Division of the High Court may vary an access disabling order if—

(a) there is a material change of circumstances; or

(b) it is otherwise appropriate to do so.

(2) The General Division of the High Court may revoke an access disabling order if—

(a) there is further evidence to show that the order should not have been made;

(b) the online location that is the subject of the order ceases to be a flagrantly infringing online location; or

(c) it is otherwise appropriate to do so.

(3) An application to vary or revoke an access disabling order may be made by—

(a) a party to the order; or

(b) the owner of the online location that is the subject of the order.

Application of presumptions

328. The presumptions in Subdivision (4) of Division 9 of Part 3 and section 181 apply in an application for an access disabling order.

Division 3—Border enforcement measures against infringing goods
Subdivision (1)—Preliminary

Interpretation of this Division

329. In this Division—

“customs officer”—

(a) means an officer of customs as defined in section 3(1) of the Customs Act; and

(b) includes—

(i) a person appointed under section 366(1); and

(ii) a senior customs officer;

“dealer”, in relation to seized goods—

(a) means the importer or intending exporter of the seized goods, as the case may be; and

(b) where the seizure was made under section 336, includes the consignee of the seized goods;

“Director-General” means the Director-General of Customs appointed under section 4(1) of the Customs Act;

“goods in transit” means imported goods (whether or not landed or transhipped within Singapore) that are to be carried to another country either by the same or another conveyance;

“infringement action” has the meaning given by section 331;

“infringing goods” has the meaning given by section 330;

“request to continue detention” means a request to continue detention under section 338;

“request to seize” means a request to seize under section 332;

“rights owner”, in relation to goods that are or incorporate (or are suspected to be or incorporate) a copyright work, includes any exclusive licensee of the copyright;

“seized goods” means goods seized under Subdivision (2) or (3);

“senior customs officer”—

(a) means a senior officer of customs as defined in section 3(1) of the Customs Act; and

(b) includes a person appointed under section 366(2).

Interpretation: what are infringing goods

330. In this Division, “infringing goods” means—

(a) goods that are or incorporate infringing copies of any of the following works:

(i) an authorial work;

(ii) a published edition of an authorial work;

(iii) a sound recording;

(iv) a film;

(v) a broadcast; or

(b) goods that are or incorporate infringing copies of a protected performance.

Infringement actions to which this Division applies

331. In this Division, “infringement action”, in relation to seized goods, means an action—

(a) for a rights infringement constituted by the importation or making of the seized goods; and

(b) brought by any person who is entitled to bring the action.

Subdivision (2)—Seizure on request

Request to seize

332.—(1) A person may request the Director-General to seize goods if—

(a) the person suspects that the goods are infringing goods of which the person is—

(i) a rights owner; or

(ii) a copyright licensee with the power to make a request under this section; and

(b) the goods are not goods in transit.

(2) A request must—

(a) be served on the Director-General in the prescribed manner and at the prescribed times;

(b) be in the form specified by the Director-General;

(c) state the capacity in which the requestor is making the request;

(d) state that infringing goods are expected to either be imported or exported;

(e) provide enough information to—

(i) identify the goods in question;

(ii) enable the Director-General to ascertain where and when the goods are expected to be imported or exported; and

(iii) satisfy the Director-General that the goods are infringing goods;

(f) provide any information or evidence that is prescribed or required by the Director-General;

(g) be accompanied by the prescribed fee; and

(h) be accompanied by the sum of money or the security required under section 349.

(3) Regulations may prescribe further requirements in relation to a request to seize.

Duration of request

333.—(1) A request to seize is in force until it is revoked or expires under this section.

(2) A request may be revoked at any time by a written notice given to the Director-General by—

(a) the requestor; or

(b) any person who becomes the rights owner after the requestor.

(3) A request expires on the earlier of the following:

(a) 60 days after the request is served on the Director-General;

(b) when the goods in question cease to be infringing goods because the copyright in them, or the protection period of the performance, expires.

Seizure on request

334. A customs officer may seize goods (whether or not they are infringing goods) if—

(a) a request to seize is made in respect of the goods;

(b) the goods are imported or proposed to be exported;

(c) the request is made in accordance with section 332;

(d) the request is in force;

(e) the requestor has deposited any sum of money, or gave any security, required under section 349; and

(f) the goods are not goods in transit.

Notice to bring action after seizure

335.—(1) After goods have been seized under section 334, the Director-General must give written notice to the requestor and the dealer.

(2) The notice must—

(a) identify the seized goods;

(b) state that the goods have been seized;

(c) state the recipient’s rights under section 351 (inspection of seized goods and removal of sample); and

(d) state that the goods will be released to the dealer unless—

(i) an infringement action is brought in relation to the goods within the prescribed time after the date specified in the notice; and

(ii) the requestor informs the Director-General of the action within that time.

(3) The date mentioned in subsection (2)(d) must not be earlier than the date on which the notice is given.

(4) The notice may be given personally, by post or (if the recipient gives prior consent) by email.

Subdivision (3)—Seizure without request

Inspection and seizure without request

336.—(1) A customs officer may examine any goods (including goods in transit) that the officer reasonably suspects to be infringing goods.

(2) Subject to subsection (3), a customs officer may seize goods that the officer reasonably suspects are—

(a) infringing goods; and

(b) imported or to be exported.

(3) Subsection (2) does not apply to goods in transit, unless they are consigned to a person with a commercial or physical presence in Singapore.

Notice of seizure

337.—(1) After goods have been seized under section 336, the Director-General must give written notice to—

(a) any person whom the Director-General considers to be a rights owner of the goods; and

(b) the dealer.

(2) The notice must—

(a) identify the seized goods;

(b) state that the goods have been seized;

(c) state the recipient’s rights under section 351 (inspection of seized goods and removal of sample); and

(d) state that the seized goods will be released to the dealer unless a request to continue detention is made in accordance with section 338.

(3) The notice may be given personally, by post or (if the recipient gives prior consent) by email.

Request to continue detention

338.—(1) A person may request the Director-General to continue to detain goods seized under section 336 if the person suspects that the goods are infringing goods of which the person is the rights owner.

(2) A request must—

(a) be made within the prescribed time after the date of the notice of seizure in section 337;

(b) be served on the Director-General in the prescribed manner and at the prescribed times;

(c) be in the form specified by the Director-General;

(d) state that the requestor intends to bring an infringement action in relation to the seized goods;

(e) provide any information or evidence that is prescribed or required by the Director-General;

(f) be accompanied by the prescribed fee; and

(g) be accompanied by the sum of money or the security required by section 349, unless—

(i) the required sum had earlier been deposited and has not been forfeited or returned; or

(ii) the required security had earlier been given and remains effective.

(3) Regulations may prescribe further requirements in relation to a request to continue detention.

Release of seized goods if request not made

339. If a request to continue detention in respect of goods seized under section 336 is not made in accordance with section 338, the Director-General must release the goods.

Notice to bring action if request made

340.—(1) If a request to continue detention in respect of goods seized under section 336 is made in accordance with section 338, the Director-General must give a written notice to the requestor and the dealer.

(2) The notice must state that the goods will be released to the dealer unless—

(a) an infringement action is brought in relation to the goods within the prescribed time after the date specified in the notice; and

(b) the requestor informs the Director-General of the action within that time.

(3) The date mentioned in subsection (2)(a) must not be earlier than the date on which the notice is given.

(4) The notice may be given personally, by post or (if the recipient gives prior consent) by email.

Subdivision (4)—Infringement action after seizure

Interpretation of this Subdivision

341. In this Subdivision—

“claim period” means the time within which an infringement action must be brought under section 342;

“notice to bring action”—

(a) in relation to goods seized under Subdivision (2)—means the notice under section 335; and

(b) in relation to goods seized under Subdivision (3)—means the notice under section 340;

“requestor”—

(a) in relation to goods seized under Subdivision (2)—means the person who made the request to seize; and

(b) in relation to goods seized under Subdivision (3)—means the person who made the request to continue detention.

Time for requestor to bring action

342.—(1) Subject to this section, where goods are seized under Subdivision (2) or (3), an infringement action in relation to the seized goods must be brought (whether by the requestor or any other entitled person) within the time specified in the notice to bring action.

(2) The requestor or any other person entitled to bring an infringement action in relation to the seized goods may apply to the Director-General for an extension of time, and the Director-General may grant the extension if the Director-General is satisfied that it is reasonable.

(3) An extension of time—

(a) starts on the expiry of the time specified in the notice to bring action; and

(b) must be for the prescribed period.

(4) An application must be made—

(a) in writing; and

(b) before the expiry of the time specified in the notice to bring action.

(5) The Director-General must decide on an application within 2 working days after the application is made.

(6) However, a decision may not be made on an application after the expiry of the period specified in the notice to bring action.

Failure to bring action—release of seized goods

343.—(1) This section applies if—

(a) no infringement action in relation to the seized goods is brought within the claim period; or

(b) the Director-General is not informed in writing of the action within the claim period.

(2) The Director-General must release the seized goods to the dealer unless—

(a) the Government or any public body is required or permitted by any other law to retain the seized goods; or

(b) the seized goods are forfeited to the Government under section 355.

Failure to bring action—compensation for seizure

344.—(1) If no infringement action is brought in relation to the seized goods within the claim period, a person aggrieved by the seizure may apply to the Court for an order of compensation against the requestor.

(2) The Court may order compensation if it is satisfied that the aggrieved person has suffered loss or damage because of the seizure.

Infringement action—orders in relation to seized goods

345.—(1) This section applies if—

(a) an infringement action is brought in relation to the seized goods; and

(b) the seized goods are not forfeited to the Government under section 355 or released when the action is brought.

(2) The Court may, in addition to granting any other remedy—

(a) at any time but subject to subsection (3), order that the seized goods be released to the dealer, either with or without conditions;

(b) order that the seized goods must not be released to the dealer before the end of a specified period; or

(c) order that the seized goods be forfeited to the Government.

(3) An order may not be made under subsection (2)(a) if the Government or any public body is required or permitted under any law to retain control of the seized goods.

(4) The Director-General must comply with any order made under subsection (2).

(5) If an order is made under subsection (2)(c), the seized goods must be disposed of—

(a) in any prescribed manner; or

(b) if no manner of disposal is prescribed, as the Director-General directs.

(6) If no order is made under subsection (2) in relation to the seized goods, the Director-General is not obliged to release the seized goods to the dealer if the Government or any public body is required or permitted under any law to retain control of the seized goods.

Infringement action—release of seized goods if no contrary order made

346.—(1) This section applies if—

(a) an infringement action is brought in relation to the seized goods;

(b) the seized goods have not been forfeited to the Government under section 355 or released when the action is brought; and

(c) on the 22nd day after the day on which the action is brought, there is no Court order that prevents the release of the seized goods.

(2) The Director-General must release the seized goods to the dealer, unless the Government or any public body is required or permitted by any law to retain control of the seized goods.

Infringement action—compensation if action dismissed, etc.

347.—(1) This section applies if—

(a) an infringement action is brought in relation to the seized goods;

(b) the action is dismissed or discontinued, or the Court decides that the importation or making of the seized goods is not a rights infringement; and

(c) the Court is satisfied that the defendant has suffered loss and damage because of the seizure.

(2) The Court may order the requestor to pay compensation to the defendant.

Infringement action—further provisions

348.—(1) If an infringement action is brought in relation to seized goods, the Court may, on the application of a person having sufficient interest in the seized goods, allow the person to be joined as a defendant.

(2) A customs officer has the right to be heard in an infringement action relating to seized goods.

Subdivision (5)—Supplementary provisions on seizure

Security for request to seize or continue detention

349.—(1) A person who makes a request to seize or a request to continue detention must—

(a) deposit with the Director-General a sum of money that, in the Director-General’s opinion, is enough for the purposes in subsection (2); or

(b) give security, in a form and for an amount satisfactory to the Director-General, for the purposes in subsection (2).

(2) The purposes are to—

(a) reimburse the Government for any liability or reasonable expense that the Government is likely to incur in relation to the seizure, storage and disposal of the goods in question; and

(b) pay any compensation ordered by the Court under section 344 or 347.

Direction for secure storage

350. The Director-General may direct any of the following persons to take seized goods to a place that the Director-General considers to be secure:

(a) the person in possession, custody or control of those goods immediately before they were seized;

(b) the person who made the request to seize or the request to continue detention.

Inspecting, or removing sample of, seized goods

351.—(1) In this section, “relevant person” means—

(a) in relation to goods seized under Subdivision (2)—the person who made the request to seize; and

(b) in relation to goods seized under Subdivision (3)—a person who may make a request to continue detention in respect of those goods (whether or not a request is made).

(2) The Director-General may permit the dealer or a relevant person to—

(a) inspect the seized goods; or

(b) subject to subsection (3), remove a sample of the seized goods for inspection.

(3) Before a person removes a sample of the seized goods for inspection, the person must give a written undertaking to the Director-General that the person will—

(a) return the sample to the Director-General at a specified time; and

(b) take reasonable care to prevent damage to the sample.

(4) If the Director-General permits a relevant person to inspect or remove a sample from the seized goods under this section, the Director-General is not liable to the dealer for any loss and damage suffered by the dealer because of—

(a) any damage caused to any of the seized goods during the inspection; or

(b) anything done by the relevant person or any other person to, or in relation to, the sample (including any use made of the sample).

Power of customs officer, etc., to require information after seizure

352.—(1) This section applies where—

(a) goods are seized under Subdivision (2); or

(b) goods are seized under Subdivision (3) (whether or not a request to continue detention is made in respect of those goods).

(2) A customs officer may, at any time after the seizure, require a person to provide any information or document at a time and place specified by the officer if—

(a) the officer considers that the information or document—

(i) would enable the Director-General to satisfy a request for information under section 353 (whether or not a request has been made);

(ii) would enable any action to be taken under Subdivision (2) or (3) in respect of future shipments of goods; or

(iii) is relevant for any statistical or research purpose; and

(b) the officer has reasonable cause to believe that the person has the information or document.

(3) A person commits an offence if—

(a) the person, without reasonable excuse, fails to comply with a requirement under subsection (2); or

(b) in response to a requirement under subsection (2), knowingly or recklessly provides any information or document that is false or misleading in a material particular.

(4) A person who commits an offence under subsection (3) shall be liable on conviction to a fine not exceeding $6,000 or to imprisonment for a term not exceeding 6 months or to both.

(5) A person is not excused from providing any information or document pursuant to a requirement under subsection (2) just because the information or document might tend to incriminate the person.

(6) Any information or document provided by a person (X) pursuant to a requirement under subsection (2) is not admissible in any criminal proceedings against X, but only if—

(a) X claims, before providing the information or document, that the information or document might tend to incriminate X; and

(b) the proceedings are not for an offence under subsection (3).

(7) Any information or document provided in response to a requirement under subsection (2) must not be published, or communicated or disclosed to any person, unless the publication, communication or disclosure is necessary for any purpose in subsection (2)(a)(i), (ii) and (iii).

(8) A person who contravenes subsection (7) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $6,000 or to imprisonment for a term not exceeding 12 months or to both.

Requestor may ask for identity, etc., of person connected with seized goods

353.—(1) This section applies where—

(a) goods are seized under Subdivision (2); or

(b) goods are seized under Subdivision (3), and a request to continue detention is made in respect of those goods.

(2) The person who made the request to seize or the request to continue detention may apply to the Director-General for the name and contact details of any person connected with the import or proposed export of the seized goods.

(3) The Director-General may provide the requested name and contact details if the Director-General is satisfied that the applicant needs the information to bring an infringement action.

(4) Subsection (3) applies despite any duty of confidentiality imposed by the common law that the Director-General (or his or her delegate) is subject to.

Notice of release

354.—(1) This section applies in any case where the Director-General is required by any provision of this Division to release seized goods to the dealer.

(2) The Director-General must—

(a) give prior written notice of the release to the dealer; and

(b) specify in the notice the period within which the dealer must take custody of the seized goods.

(3) If the dealer fails to take custody of the seized goods within the specified period, the seized goods may be disposed of—

(a) in any prescribed manner; or

(b) if no manner of disposal is prescribed, as the Director-General directs.

Forfeiture by consent

355.—(1) A dealer may consent to forfeiting seized goods to the Government by giving written notice to the Director-General.

(2) The notice must—

(a) be given before—

(i) any infringement action is brought in relation to the seized goods; and

(ii) any written notice under section 356 consenting to the release of the seized goods to the dealer; and

(b) be accompanied by the prescribed written undertakings.

(3) If subsections (1) and (2) are satisfied, the seized goods are forfeited to the Government and must be disposed of—

(a) in any prescribed manner; or

(b) if no manner of disposal is prescribed, as the Director-General directs.

Release by consent

356.—(1) A person who made a request to seize or a request to continue detention may consent to releasing the seized goods to the dealer by giving written notice to the Director-General.

(2) The Director-General must release the seized goods to the dealer unless—

(a) the Government or any public body is required or permitted by any law to retain control of the seized goods; or

(b) the Court orders otherwise under section 345.

Release for non-compliance with directions, etc.

357.—(1) The Director-General or a customs officer may refuse to seize goods and may release any seized goods if any direction of the Director-General, or any prescribed requirement, is not complied with.

(2) Subsection (1) does not require the Director-General to release any seized goods if the Government or any public body is required or permitted under any law to retain control of the goods.

Unsecured expenses of Director-General

358.—(1) This section applies where—

(a) the Director-General incurs reasonable expenses in taking any action under this Division in relation to seized goods (including taking any action in accordance with a court order); and

(b) the expenses exceed the sum deposited, or the security given, under section 349 by the person or persons who made the request to seize or the request to continue detention in respect of the seized goods.

(2) The excess is a debt due—

(a) to the Government; and

(b) by that person, or by those persons jointly and severally.

Subdivision (6)—Powers to search for seizable infringing goods

Interpretation of this Subdivision

359. In this Subdivision—

“aircraft”, “conveyance”, “master”, “pilot of an aircraft”, “vehicle” and “vessel” have the meanings given by section 2 of the Regulation of Imports and Exports Act;

“seizable goods” means goods that may be seized under Subdivision (2) or (3).

Powers to search vessels, aircrafts and vehicles

360.—(1) A senior customs officer may—

(a) board any conveyance in Singapore; and

(b) rummage and search all parts of the conveyance for seizable goods.

(2) In order to effectively exercise the power under subsection (1), a senior customs officer may do all or any of the following:

(a) order the master of any vessel in Singapore to heave to;

(b) order the master of any vessel or the pilot of any aircraft in Singapore that the vessel or aircraft must not proceed unless permitted by the officer;

(c) order a person to produce for inspection any documents that—

(i) ought to be on board any vessel or aircraft; and

(ii) relate to any goods on the vessel or aircraft;

(d) break open and forcibly enter any place or receptacle in any conveyance to which the officer cannot otherwise reasonably obtain access;

(e) order the master of any vessel in Singapore to cause the vessel to proceed to a specified anchorage, wharf or place to which the vessel may lawfully go;

(f) order the master of any vessel in Singapore to move or discharge any cargo or other goods in the vessel;

(g) order the person in charge of a vehicle—

(i) to stop and not to proceed until so authorised; or

(ii) to bring the vehicle to any police station or examination station;

(h) order that any goods from or placed in any vessel may not be removed unless permitted by the officer;

(i) order the master of any vessel or the pilot of any aircraft to produce—

(i) a complete manifest of the whole cargo of the vessel or aircraft; and

(ii) a complete list of stores carried by that vessel or aircraft;

(j) take any necessary steps that the officer considers necessary to secure compliance by any vessel or aircraft with an order under this section.

(3) A customs officer (not being a senior customs officer) may—

(a) exercise the power in subsection (1), but only at the general or specific directions of a senior customs officer; and

(b) exercise the powers in subsection (2) but—

(i) not the powers in paragraphs (d) and (j) of that subsection; and

(ii) only in respect of—

(A) a vehicle or vessel of 75 tons net tonnage or less; or

(B) a vessel under way if the officer reasonably suspects that the vessel is not in transit through Singapore.

(4) A customs officer (not being a senior customs officer) who does any act in purported exercise of any power under this section is presumed, unless the contrary is proved, to have done that act at the general or specific directions of a senior customs officer.

(5) A person who fails to comply with an order under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $6,000 or to imprisonment for a term not exceeding 12 months or to both.

Examination and search of packages, etc.

361.—(1) The powers under subsections (2) and (3) may be exercised in relation to an article if—

(a) the article is being imported or exported, or has recently been imported; and

(b) the officer reasonably suspects that the article is or contains seizable goods.

(2) A customs officer may—

(a) examine and search the article;

(b) detain the article until any person in charge of the article opens it for examination and search;

(c) perform any process to verify whether the article is or contains seizable goods;

(d) perform any test or analysis on the article; or

(e) mark, lock, seal or otherwise secure the article pending examination or search.

(3) A senior customs officer may forcibly open, or order any person to forcibly open, the article for the purpose of examination or search.

(4) In exercising the power under subsection (3), a senior customs officer must give the person in charge of the article every reasonable facility to be present at the opening, examination and search.

(5) It is an offence for a person (other than a customs officer) to remove, open, break or tamper with any mark, lock, seal or other means that is used to secure an article in exercise of the power in subsection (2)(e).

(6) A person who commits an offence under subsection (5) shall be liable on conviction to a fine not exceeding $6,000 or to imprisonment for a term not exceeding 6 months or to both.

(7) In this section and section 362, “article” includes a package, a box, a chest and goods.

Removal of packages, etc., to police station, etc., for examination and search

362.—(1) For the more convenient exercise of the powers under section 361, a customs officer may—

(a) remove an article to a police station or an examination station; or

(b) order the article to be so removed by the owner of the article, the owner’s agent, or any person who has custody, charge or control of the article.

(2) A person who fails to comply with an order under subsection (1)(b) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $6,000.

(3) If a person fails to comply with an order under subsection (1)(b) in relation to an article—

(a) a customs officer may remove the article under subsection (1)(a); and

(b) any expense of the removal, as certified by a senior customs officer, may be recovered as a fine from that person or the owner of the article.

Search of travellers and baggage

363.—(1) This section applies to a person (called in this section a traveller)—

(a) who is landing, is about to land, or has recently landed, from any vessel or aircraft;

(b) who is leaving any vessel or aircraft in Singapore (whether to land or for any other purpose); or

(c) who is entering or has recently entered Singapore by land, sea or air.

(2) A customs officer (not being a senior customs officer) may demand that—

(a) the traveller permits his or her person and goods to be searched by the officer for any seizable goods; or

(b) the traveller—

(i) goes, together with the traveller’s goods, to a police station or an examination station; and

(ii) permits his or her person and goods to be searched there, in the presence and under the supervision of a senior customs officer, for seizable goods.

(3) A senior customs officer may demand that—

(a) the traveller permits his or her person and goods to be searched by the officer for any seizable goods; or

(b) the traveller permits his or her person and goods to be searched, in the presence and under the supervision of the officer, for any seizable goods.

(4) A woman must not be searched under this section except by a woman and with strict regard to decency.

(5) If a traveller requests to be present when his or her goods are searched, the goods may not be searched unless—

(a) the traveller is present; or

(b) the traveller is absent despite being given a reasonable facility to be present.

(6) A traveller who refuses to comply with a demand under this section may be arrested without warrant by the officer making the demand.

(7) In this section, “goods” includes baggage.

Powers to enter certain premises

364.—(1) For the purpose of exercising any power under section 360, 361, 362 or 363, a customs officer may, without warrant, enter—

(a) any islet, landing place, wharf, dock, railway or quay;

(b) any premises of a provider of port services or facilities licensed or exempted under the Maritime and Port Authority of Singapore Act; or

(c) any premises of any airport operated under a licence or exemption under the Civil Aviation Authority of Singapore Act.

(2) In this section, “railway” has the meaning given by the Railways Act.

Obstruction of customs officers

365.—(1) A person commits an offence if he or she—

(a) refuses any customs officer access to any vessel, aircraft, vehicle or place that the officer is entitled to under this Subdivision; or

(b) obstructs or hinders any customs officer in the exercise of any power conferred on that officer by this Subdivision.

(2) A person who commits an offence under subsection (1) shall be liable on conviction to a fine not exceeding $15,000 or to imprisonment for a term not exceeding 12 months or to both.

Subdivision (7)—Administration of this Division

Appointment of persons to exercise powers and duties of customs officers

366.—(1) The Minister may appoint any person, or class of persons, to exercise the powers and perform the duties of a customs officer under this Division (including any subsidiary legislation relating to this Division).

(2) The Minister may appoint any person, or class of persons, to exercise the powers and perform the duties of a senior customs officer under this Division (including any subsidiary legislation relating to this Division).

(3) An appointment under this section must be made by notification in the Gazette.

Delegation of Director-General’s powers

367.—(1) Subject to this section, the Director-General may delegate any of his or her powers and duties under this Division (including any subsidiary legislation relating to this Division) to a senior officer of customs as defined in section 3(1) of the Customs Act.

(2) A delegation under subsection (1) may be subject to any conditions specified by the Director-General.

(3) The power in subsection (1) may not be delegated.

Fees

368. The Minister charged with the responsibility for customs duties may make regulations to prescribe the fees payable to the Director-General for the administration of this Division, including fees for the following purposes:

(a) for the escort of a conveyance conveying seized goods;

(b) for a customs officer to attend the inspection or destruction of seized goods;

(c) for the attendance of a customs officer in connection with any other act or service under this Division.