New Singapore Copyright Exception will propel AI revolution

Copyright, one of the fundamental intellectual property rights, grants the owner of copyright rights and control over the expression of ideas that are reduced to tangible forms such as literary, dramatic, musical and artistic works. It is important that the law provides adequate protection for copyright owners to encourage the creation of new and original work but this needs to be balanced with the right to use copyright work fairly and reasonably for the benefit of society, particularly with respect to copyright work which has been made publicly available. In Singapore, the law governing copyright is the Copyright Act.

Copyright Bill

On 6 July 2021 the Copyright Bill (the “Bill”) was first tabled in Parliament. This Bill will replace Singapore’s current copyright regime. The Bill’s aim is to strengthen the copyright regime in Singapore by bringing copyright law up to date with current technology, and in particular, with how content is created, distributed and used.

Computational Data Analysis Exception

One of the most interesting features of the Bill is a new exception to copyright owners’ rights which will permit copyright works, if lawfully accessed (e.g. without circumventing paywalls), to be used for computational data analysis, such as sentiment analysis, text and data mining, or training machine learning, without having to seek the permission of each copyright owner, subject to certain conditions and safeguards (the “Computational Data Analysis Exception”).

Computational data analysis is defined in the Bill to include using:

• A computer program to identify, extract and analyse information or data from the work or recording; and
• The work or recording as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data.

An illustrative example of computational data analysis provided in the Bill is the use of images to train a computer program to recognise images.

The new Computational Data Analysis Exception applies to both commercial and non-commercial purposes and cannot be excluded or restricted by contract (this would include, for example, website terms and conditions).

Comparison with the UK/EU position

Legislation in the EU (Directive on Copyright in the Digital Single Market 2019/790 (DSM Directive)) and the UK (Copyright Designs and Patents Act 1988 (CDPA)) also contain exceptions to copyright protection in respect of text and data mining:

• The CDPA permits the copying of a work by a person who has lawful access to it in order to carry out a “computational analysis” for the sole purpose of research for a non-commercial purpose. The CDPA contains a provision to ensure that this exception cannot be excluded by contract. However, the Court of Justice of the European Union (CJEU) decided in Ryanair Ltd v PR Aviation BV, Case C-30/14 that where information (e.g. flight data available on a website) does not qualify for copyright protection or the separate sui generis database rights available under EU law, the data owner will be permitted to impose contractual restrictions to prevent webscraping. This therefore has the effect of allowing website owners an advantage where their data is not protectable under IP law, as they may instead be able to rely on national contract law to prevent their data from being scraped.
• Under the DSM Directive, the exception extends more broadly to commercial entities, but unless the user is a research organisation or a cultural heritage institution, the copyright owner can exclude the exception contractually (or in any other “appropriate manner”).

The Singapore Bill goes a significant step further than both the CDPA and the DSM Directive in that it allows for the Computational Data Analysis Exception to widely apply for commercial purposes as well as non-commercial purposes, in both cases in circumstances where it cannot be excluded or restricted by contract.

Practical Implications of Computational Data Analysis Exception

The purpose of Singapore’s new Computational Data Analysis Exception is to ensure that copyright works are available for the benefit of society at large. As the Computational Data Analysis Exception applies to both commercial and non-commercial purposes, it will also assist to foster increased innovation in Singapore.

Access to large quantities of data are inherent in the development of artificial intelligence technology and this new exception will allow developers to access far greater quantities of data necessary to train AI algorithms and amass big data by using webcrawlers and other similar technology without the risk of infringing copyright law in Singapore.

The new changes in the Bill are expected to come into force in November 2021.