Copyright Act 2021/Part 9

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PART 9
REGULATION OF COLLECTIVE MANAGEMENT ORGANISATIONS
Division 1—Preliminary

Interpretation of this Part

458. In this Part, unless the context otherwise requires—

“cessation order” means a cessation order under section 465;

“class licence”—

(a) means a class licence established under section 462; and

(b) in relation to a CMO, means a licence applicable to the CMO;

“class licence condition” means a condition of a class licence;

“collective management organisation” or “CMO” has the meaning given by section 459;

“member”, in relation to a CMO, has the meaning given by section 459(3);

“officer”—

(a) in relation to a body corporate, means any director, partner, member of the committee of management, chief executive, manager, secretary or other similar officer of the body corporate and includes any person purporting to act in any such capacity;

(b) in relation to an unincorporated association (other than a partnership), means the president, the secretary, or any member of the committee of the unincorporated association, or any person holding a position analogous to that of president, secretary or member of a committee and includes any person purporting to act in any such capacity; and

(c) in relation to a partnership, means any partner;

“permission”—

(a) in relation to a copyright work, means a copyright licence relating to the use of the work; and

(b) in relation to a protected performance, means authority relating to the use of the performance;

“regulatory direction” means a direction given under section 464;

“tariff scheme” has the meaning given by section 459(3).

Interpretation: what is a collective management organisation (CMO) and who are its members; what is a tariff scheme

459.—(1) In this Part, a person (X) is a “collective management organisation” or “CMO” if—

(a) X is in the business of collectively managing the use of copyright works or protected performances (or both), including—

(i) negotiating the terms of use;

(ii) granting permission for the use;

(iii) administering any terms of use; and

(iv) collecting and distributing royalties or any other payment for the use;

(b) those works or performances—

(i) are made or given by different authors, makers, publishers or performers; and

(ii) are not made or given by those authors, makers, publishers or performers—

(A) as employees of X or a prescribed related person; or

(B) under a commission from X or a prescribed related person;

(c) X manages those works or performances—

(i) as the rights owner or with the authority of the rights owners; and

(ii) for the collective benefit of—

(A) those authors, makers, publishers or performers; or

(B) the rights owners of those works or performances (but not including X);

(d) X formulates or operates one or more schemes (however named) setting out—

(i) the classes of cases in which X is willing to grant, or procure the grant of, permission to use the works or performances that X manages; and

(ii) the terms (whether relating to the payment of a fee or charge or otherwise) on which X is willing to grant, or procure the grant of, that permission;

(e) one or more of the schemes mentioned in paragraph (d) are available to the public (or a segment of the public) in Singapore; and

(f) X does not fall under any prescribed class of excluded persons.

(2) For the purposes of subsection (1)—

(a) to avoid doubt, X and the related person mentioned in subsection (1)(b)(ii) may be—

(i) an individual;

(ii) an organisation, an association or a body;

(iii) a corporate or an unincorporate entity; or

(iv) constituted under the law of a country other than Singapore;

(b) it does not matter whether the business mentioned in subsection (1)(a)—

(i) is carried on for profit or otherwise; or

(ii) is the sole or main business of X; and

(c) it does not matter whether the schemes mentioned in subsection (1)(d) are formulated or brought into operation before, on or after the appointed day.

(3) In this Part—

“members”, in relation to a CMO, means the authors, makers, publishers, performers and rights owners mentioned in subsection (1)(c)(ii), but not the CMO itself;

“tariff scheme” means a scheme described in subsection (1)(d) that is available to the public (or a segment of the public) in Singapore.

Purpose of this Part

460. The purpose of this Part is to—

(a) regulate CMOs under a class licensing scheme administered by IPOS; and

(b) confer on Copyright Tribunals powers over the circumstances in which, and the terms on which, CMOs grant permission to use copyrighted works and protected performances.

Division 2—Class licensing of CMOs

CMOs must be licensed

461.—(1) It is an offence for a person to carry on business as a CMO—

(a) without a class licence; or

(b) while under a cessation order.

(2) A person who commits an offence under subsection (1) 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.

Class licences

462.—(1) The Minister may, by regulations—

(a) establish one or more class licences (whether for all CMOs or for different classes of CMOs);

(b) prescribe, change, add to or revoke class licence conditions; and

(c) end a class licence.

(2) Without limiting subsection (1)(b), class licence conditions may relate to—

(a) the rights that a CMO must grant to its members;

(b) the collection and distribution of royalties or any other payment by the CMO;

(c) the information that a CMO must provide to its members or the public;

(d) the manner by which a CMO must resolve any disputes with its members; and

(e) the governance of a CMO.

Financial penalty for non-compliance with class licence conditions

463.—(1) If IPOS finds that a licensed CMO has contravened any of its class licence conditions, IPOS may, by written notice, impose—

(a) a financial penalty not exceeding $20,000 on the CMO; and

(b) a financial penalty not exceeding $20,000 on each officer of the CMO that IPOS considers to be responsible for the contravention.

(2) Before imposing a financial penalty on a person under subsection (1), IPOS must give the person an opportunity to make representations in accordance with the prescribed procedure.

(3) A financial penalty imposed under subsection (1) is recoverable as a fine.

(4) Financial penalties collected under subsection (1) must be paid into the Consolidated Fund.

Regulatory directions to CMOs and their officers

464.—(1) Subject to subsection (3), IPOS may, by written notice, give directions to a CMO or any officer of a CMO for any of the following purposes:

(a) to obtain information about the CMO and its business as a CMO, for the purpose of regulating CMOs in general;

(b) to secure the CMO’s compliance with its class licence conditions;

(c) to ensure the good governance of the CMO;

(d) to investigate or remedy any contravention by the CMO of its class licence conditions;

(e) where the CMO is under a cessation order, to secure the orderly cessation of the CMO’s business as a CMO.

(2) The power of IPOS under subsection (1) includes directing a CMO or any officer of a CMO to—

(a) provide security for the CMO’s compliance with its class licence conditions;

(b) conduct an audit of the CMO’s business at the expense of the CMO or officer;

(c) if there is reason to believe, based on credible information, that the CMO has contravened one or more of its class licence conditions—

(i) submit to an audit of the CMO’s business conducted by or at the direction of IPOS;

(ii) pay the cost incurred by IPOS for the audit; and

(iii) pay any other cost incurred by IPOS in relation to the audit, but only if the findings of the audit lead to—

(A) a financial penalty being imposed on the CMO or an officer of the CMO;

(B) a regulatory direction to the CMO or an officer of the CMO to turn over the conduct of the CMO’s business to a person appointed by IPOS; or

(C) a cessation order being made against the CMO;

(d) secure the removal or appointment of a person as an officer of the CMO;

(e) turn over the conduct of the CMO’s business to a person appointed by IPOS;

(f) stop taking on the management of new works or performances; and

(g) in the case of an officer of the CMO—resign from or otherwise cease to act in that capacity.

(3) Regulations may require IPOS to give a person an opportunity to make representations in accordance with the prescribed procedure before giving a regulatory direction to the person.

(4) IPOS may, by written notice, revoke a regulatory direction at any time.

(5) It is an offence for a person to—

(a) fail to comply with a regulatory direction; or

(b) knowingly do anything that prevents or impedes compliance with a regulatory direction.

(6) A person who commits an offence under subsection (5) shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 6 months or to both.

(7) For the purposes of subsection (2)(c)—

(a) IPOS may certify in writing the cost incurred by IPOS for or in relation to an audit; and

(b) unless the contrary is proved, the certified cost is presumed to be the cost for or in relation to that audit and is recoverable as a debt due from the CMO or officer to IPOS.

(8) A regulatory direction has effect despite—

(a) any written law; and

(b) in the case of a CMO that is not an individual—anything in the memorandum or articles of association, or other constitution, of the CMO.

Cessation order

465.—(1) IPOS may, by written notice, order a CMO to cease its business as a CMO indefinitely or for a specified period if—

(a) the CMO fails to comply with—

(i) a class licence condition; or

(ii) a regulatory direction given to it;

(b) an officer of the CMO fails to comply with a regulatory direction given to the officer;

(c) there is significant impropriety in the financial affairs of the CMO; or

(d) IPOS considers that the public interest so requires.

(2) Before making a cessation order against a CMO, IPOS must give the CMO an opportunity to make representations in accordance with the prescribed procedure.

(3) To avoid doubt, a cessation order may be made in addition to any financial penalty or sentence imposed on the CMO.

(4) When a CMO is under a cessation order—

(a) every class licence ceases to apply to it, unless the order otherwise specifies; but

(b) to avoid doubt, it is still subject to regulatory directions.

(5) IPOS may, by written notice, revoke a cessation order at any time.

Reconsideration of decisions

466.—(1) This section applies where IPOS—

(a) imposes a financial penalty on a person;

(b) makes a cessation order against a person; or

(c) gives a regulatory direction to a person.

(2) The person may apply to IPOS, within the prescribed time and in the prescribed manner, for IPOS to reconsider its decision.

(3) In an application for reconsideration—

(a) IPOS must, within the prescribed time, confirm, vary or set aside its decision; and

(b) unless IPOS otherwise orders, a financial penalty must be paid, and a cessation order or regulatory direction complied with, pending reconsideration by IPOS.

(4) This section does not require IPOS to reconsider a decision made after reconsideration.

Appeal

467.—(1) This section applies where IPOS, after reconsideration under section 466—

(a) confirms or varies a financial penalty imposed on a person;

(b) confirms or varies a cessation order made against a person; or

(c) confirms or varies a regulatory direction given to a person to turn over the conduct of the CMO’s business to a person appointed by IPOS.

(2) The person may appeal to the Minister within the prescribed time and in the prescribed manner.

(3) In an appeal—

(a) the Minister may confirm, vary or set aside the decision appealed against;

(b) for the purposes of deciding the appeal, the Minister may require the appellant or any other person (whether or not the person is a party to the appeal) to provide the Minister with any information that is relevant to the appeal, and to do so within the time and the manner specified by the Minister; and

(c) unless the Minister otherwise orders, the person must pay the financial penalty or comply with the cessation order or regulatory direction (as the case may be) pending the appeal.

Division 3—Review of tariff schemes, etc., by Copyright Tribunals

Interpretation: who is an intending user of a tariff scheme

468. In this Division, an “intending user”, in relation to a tariff scheme—

(a) is a person who requires permission in a case falling under a class of cases to which the tariff scheme applies; and

(b) includes a person who has been granted permission under the tariff scheme, but who requires further permission of the same kind after the expiry of the granted permission.

Interpretation: when does a tariff scheme apply or not apply to a case

469. For the purposes of this Division, a tariff scheme (being a scheme that is in force) is taken—

(a) subject to paragraph (b), as applying to a case if permission would be granted in that case under the terms of the tariff scheme; and

(b) as not applying to a case if—

(i) the permission granted would be subject to exceptions; and

(ii) the case falls within one or more of those exceptions.

Review of proposed tariff scheme

470.—(1) A CMO may refer a tariff scheme formulated by it to a Copyright Tribunal before bringing the scheme into force.

(2) The Tribunal must, after reviewing the tariff scheme and having regard to what is reasonable in the circumstances—

(a) make an order to confirm or vary the tariff scheme (including substituting the tariff scheme with another tariff scheme);

(b) specify the date from which the order has effect; and

(c) specify whether the order has effect indefinitely or for a specified period.

(3) To avoid doubt, the Tribunal is not constrained by any term of the tariff scheme (whether relating to its duration or otherwise) in making an order under subsection (2).

(4) Before an order is made under subsection (2), the CMO may do either or both of the following:

(a) bring the tariff scheme into force;

(b) withdraw the reference (whether or not the tariff scheme has been brought into force).

(5) Once an order under subsection (2) takes effect, the tariff scheme—

(a) comes into force (if it has not already been brought into force); and

(b) remains in force so long as the order has effect.

Review of in-force tariff scheme

471.—(1) This section applies where—

(a) a tariff scheme is in force; and

(b) there is a dispute about the terms of the tariff scheme between the CMO that formulated the tariff scheme and—

(i) an intending user of the tariff scheme; or

(ii) an organisation that is representative of intending users of the tariff scheme.

(2) The CMO, user or organisation may refer the tariff scheme, so far as it relates to the class of cases the user or organisation is concerned with, to a Copyright Tribunal.

(3) The Tribunal must reject the reference without considering its merits if—

(a) it is made by an organisation; and

(b) the organisation is not reasonably representative of the intending users it claims to represent.

(4) Subject to subsection (3), the Tribunal must, after reviewing the tariff scheme and having regard to what is reasonable in the circumstances—

(a) make an order to confirm or vary the tariff scheme (including substituting the tariff scheme with another tariff scheme);

(b) specify the date from which the order has effect; and

(c) specify whether the order has effect indefinitely or for a specified period.

(5) To avoid doubt, the Tribunal is not constrained by any term of the tariff scheme (whether relating to its duration or otherwise) in making an order under subsection (4).

(6) The reference may be withdrawn at any time before the Tribunal makes an order under subsection (4).

(7) Despite anything in the tariff scheme but subject to any interim order made by the Tribunal, the tariff scheme remains in force while the reference is pending.

(8) Once an order made under subsection (4) takes effect, the tariff scheme remains in force so long as the order has effect.

Review after order made under section 470 or 471, etc.

472.—(1) This section applies where an order (called in this section the existing order) has been made under section 470 or 471, or under subsection (6)(b), in respect of a tariff scheme.

(2) Subject to subsections (3) and (4), the following persons may refer the tariff scheme to a Copyright Tribunal at any time while the existing order has effect:

(a) the CMO operating the tariff scheme;

(b) an intending user of the tariff scheme;

(c) an organisation that is representative of intending users of the tariff scheme.

(3) If the existing order applies only to one or some (but not all) of the classes of cases to which the tariff scheme applies—

(a) the intending user mentioned in subsection (2)(b) must be an intending user in respect of the class or classes of cases to which the existing order applies;

(b) the organisation mentioned in subsection (2)(c) must be representative of intending users in respect of the class or classes of cases to which the existing order applies; and

(c) the reference must relate only to the class or classes of cases to which the existing order applies.

(4) The permission of a Tribunal is required to bring a reference in the following cases:

(a) if the existing order has effect indefinitely or for a period exceeding 15 months—less than 12 months have elapsed since the date of the order;

(b) if the existing order has effect for a period of 15 months or less—there are more than 3 months before the order expires.

(5) The Tribunal must reject the reference without considering its merits if—

(a) it is made by an organisation; and

(b) the organisation is not reasonably representative of the intending users it claims to represent.

(6) Subject to subsection (5), the Tribunal must, after reviewing the tariff scheme and having regard to what is reasonable in the circumstances—

(a) confirm the existing order; or

(b) revoke the existing order and make a fresh order to vary the tariff scheme (including substituting the tariff scheme with another tariff scheme), in which case the Tribunal must also—

(i) specify the date from which the fresh order has effect; and

(ii) specify whether the fresh order has effect indefinitely or for a specified period.

(7) To avoid doubt, the Tribunal is not constrained by any term of the tariff scheme (whether relating to its duration or otherwise) in making a fresh order under subsection (6)(b).

(8) The reference may be withdrawn at any time before the Tribunal makes a decision under subsection (6).

(9) Despite anything in the tariff scheme but subject to any interim order made by the Tribunal, the tariff scheme remains in force while the reference is pending.

(10) Once an order under subsection (6)(b) takes effect, the tariff scheme remains in force so long as the order has effect.

(11) This section does not prevent a person from bringing a reference of the tariff scheme under section 470 or 471 at any time—

(a) in respect of any class of cases to which the existing order does not apply; or

(b) after the existing order expires.

Effect where tariff scheme remains in force pending reference or after Tribunal order

473.—(1) This section applies where a tariff scheme remains in force—

(a) under section 471(7) or 472(9) while a reference is pending; or

(b) under an order of a Copyright Tribunal made under section 470(2), 471(4) or 472(6).

(2) While the tariff scheme remains in force, a person is deemed to have been granted permission in accordance with the tariff scheme if the person complies with the terms of the tariff scheme (including any variations ordered by the Tribunal) at all material times.

(3) For the purposes of subsection (2), if the terms of a tariff scheme require the payment of a sum the amount of which cannot be ascertained at the material time, a person is deemed to have complied with those terms if the person—

(a) gives the CMO operating the tariff scheme a written undertaking to pay the sum when it is ascertained; and

(b) pays the sum to the CMO as soon as practicable when it is ascertained.

(4) If—

(a) while the tariff scheme remains in force, a person does an act that—

(i) is a rights infringement; but

(ii) would not be a rights infringement if permission had been granted under the tariff scheme; and

(b) the terms of the tariff scheme require the payment of a sum for the grant of that permission,

the sum is recoverable as a debt due by the person to the CMO.

(5) Upon the payment or recovery of the sum mentioned in subsection (4), the person is deemed for the purposes of subsection (2) to have complied with the terms of the tariff scheme so far as they relate to the payment of the sum.

Application to Tribunal for permission to be granted on reasonable terms

474.—(1) The following persons or organisations may make an application against a CMO to a Copyright Tribunal:

(a) a person (X) who claims, in a case to which a tariff scheme applies, that—

(i) the CMO operating the tariff scheme has refused to grant X (or procure the grant to X of) permission in accordance with the terms of the tariff scheme after a request was made by X; or

(ii) the terms of the tariff scheme for granting (or procuring the grant of) permission to X are unreasonable in the circumstances;

(b) a person (Y) who claims to require permission in a case where—

(i) a tariff scheme does not apply, has not been formulated or is not in force; and

(ii) a CMO has—

(A) unreasonably refused to grant (or procure the grant of) the required permission after a request was made by Y; or

(B) proposed to grant (or procure the grant of) permission to Y on terms that are unreasonable in the circumstances;

(c) an organization (Z) that is representative of persons to which paragraph (b) applies.

(2) For the purposes of subsection (1), a CMO is deemed to have refused to grant (or procure the grant of) permission to a person if it fails to grant (or procure the grant of) that permission within a reasonable time after a request to do so.

(3) The Tribunal must reject the application without considering its merits if—

(a) it is made by an organisation; and

(b) the organisation is not reasonably representative of the persons it claims to represent.

(4) Subject to subsection (3), the Tribunal may, having regard to what is reasonable in the circumstances, order the CMO—

(a) to grant (or procure the grant of) the permission required by X, Y or the persons represented by Z, as the case may be; and

(b) to do so on the terms specified by the Tribunal.

(5) While an order under subsection (4) has effect, X, Y or a person represented by Z (as the case may be) is deemed to have been granted the relevant permission if X, Y or the person complies with the terms specified by the Tribunal at all material times.

(6) For the purposes of subsection (5), if the terms specified by the Tribunal require the payment of a sum the amount of which cannot be ascertained at the material time, a person is deemed to have complied with those terms if the person—

(a) gives the CMO a written undertaking to pay the sum when it is ascertained; and

(b) pays the sum to the CMO as soon as practicable when it is ascertained.

(7) If—

(a) while the order of the Tribunal has effect, a person does an act that—

(i) is a rights infringement; but

(ii) would not be a rights infringement if permission is deemed to have been granted under subsection (5); and

(b) the terms of the order require the payment of a sum for the grant of that permission,

the sum is recoverable as a debt due by the person to the CMO.

(8) Upon the payment or recovery of the sum mentioned in subsection (7), the person is deemed for the purposes of subsection (5) to have complied with the terms of the order so far as they relate to the payment of the sum.

Orders not to contradict regulatory directions or class licence conditions

475.—(1) Despite any contrary provision in this Division, a Copyright Tribunal may not order a CMO to do anything that contravenes any class licence condition or regulatory direction applicable to the CMO.

(2) Without limiting section 494 (reference of question of law), the question whether an order or a proposed order of a Copyright Tribunal requires a CMO to do anything that contravenes any class licence condition or regulatory direction applicable to the CMO is a question of law that may be referred under that section.

Division 4—Miscellaneous

CMO may apply to Tribunal on behalf of rights owners

476.—(1) A CMO that manages the use of a work or protected performance on behalf of the rights owner may make an application to a Tribunal under this Act on behalf of the rights owner.

(2) A CMO may make a single application under subsection (1) on behalf of 2 or more rights owners.