Copyright Act, Parliamentary Legislation, Chapter 63, Revised Edition 2006, January 31, 2006 (originally Apr. 19, 1987) (An Act relating to copyright and matters related thereto)

In 1999, Singapore made its first amendments to the Copyright Act to introduce various safe harbor defenses for Internet intermediaries as network service providers. Arising from its obligations under the U.S. Singapore Free Trade Agreement,  Singapore further revised in 2004 the safe harbor defenses in the Copyright Act for network service providers.

(1) Section 193A of the Copyright Act states that the safe harbor defenses are to apply to “network service providers”, which includes ISPs as intermediaries providing services and connections for data transmission or routing, as well as intermediaries who provide or operate facilities for online services or network access. It would seem that “network service providers” are broadly defined so that most Internet intermediaries would qualify for the safe harbor defenses. In the Singapore High Court decision in RecordTV Pte Ltd v. MediaCorp TV Singapore Pte Ltd, 2009 SGHC 287 (Sing. H.C.) (“RecordTV”), the Singapore High Court chose to interpret section 193A to apply only to “bona fide” network service providers.  The court did not explain what it meant by a “bona fide” network service provider, only that as RecordTV made copies of the rightholders’ programming, it was not considered one that is bona fide.  On appeal, the Court of Appeal, which reversed the High Court for holding RecordTV liable, did not discuss this judicial gloss placed on the safe harbor defense. 

(2) The four safe harbor defenses mirror the same defenses in the United States Digital Millennium Copyright Act. Section 193B, modeled after 17 U.S.C. § 512(a), indemnifies an ISP (as a subclass of a “network service provider”) from monetary relief for any copyright infringement that occurs by reason of the transmission, routing, provision of connections or transient storage by the ISP of an electronic copy of the material. To qualify for this defense, the transmission must be initiated by a person (other than the ISP), the transmission must be carried out without any selection of the material, the ISP must not select the recipients of the material except by way of an automatic response, and the ISP must not make any substantive modifications to the material during its transmission. In RecordTV, the Internet intermediary sought to bring itself under this safe harbor defense. This was rightly rejected by the court, because the operations of RecordTV could hardly be characterized as an “automatic technical process” of an ISP, although it would have been easier for the court to dismiss this defense simply on the grounds that RecordTV is not an ISP.

(3) Section 193C of the Singapore Copyright Act, modeled after 17 U.S.C. § 512(b), indemnifies a network service provider for making, through an automatic process, a cached copy of a work on its network from the originating network, in response to a user’s action, in order to facilitate efficient access to the material by its users. The conditions are that the network service provider will not make any substantive modifications to the content of the cached copy, and if it is furnished with a take-down notice, it is to expeditiously take reasonable steps to remove or disable access to the cached copy of the work on its network.  In addition, it has to satisfy other conditions that the Minister may prescribe, including conditions relating to access to the copy, the refreshing, reloading or updating of the cached copy and non-interference with any technology used by the originating network to obtain information about usage of the material. 

(4) Section 193D of the Singapore Copyright Act, modeled after 17 U.S.C. § 512(c) and (d), indemnify a network service provider for providing hosting and referral services from monetary relief for any copyright infringement arising from its activities. To qualify for protection, a network service provider providing hosting services that involve storing an electronic copy of the infringing material on its work must not receive any direct financial benefit from the infringement, and has to designate a representative to receive the prescribed take-down notices.  Likewise, a network service provider providing referral or linking services must not receive any direct financial benefit from the infringement, and has to designate a representative to receive the prescribed take-down notices.  The hosting or referring network service provider will lose the indemnity if upon acquiring actual knowledge of such facts or circumstances “which would lead inevitably to the conclusion” of infringement, or is furnished with a prescribed take-down notice, it does not expeditiously take reasonable steps to remove or disable access to the infringing material.  

(5) Notwithstanding the safe harbor conditions which a network service provider has to observe to qualify for indemnity, section 193A of the Copyright Act states that a network service provider is not obliged to monitor its service or affirmatively seeking facts to indicate infringing activity, or to gain access to, remove or disable access to any infringing material.  However, to qualify for the safe harbors, a network service provider has to adopt and reasonably implement a policy for termination of repeat offenders, and must accommodate and not interfere with standard technical measures for identification or protection of copyrighted material.