Copyright Act 2021 — PART 4: PROTECTION OF PERFORMANCES

Sushant Shukla

Part of a comprehensive analysis of the Copyright Act 2021

All Parts in This Series

Protection of Performances under the Copyright Act 2021: Key Provisions and Their Purpose

The Copyright Act 2021 in Singapore establishes a comprehensive legal framework for the protection of performances, recognizing the creative efforts of performers and safeguarding their rights against unauthorized use. This analysis focuses on the key provisions within Part 6 of the Act, which specifically address the protection of performances, the scope and duration of such protection, the definition of infringing uses, and the enforcement mechanisms available to performers.

Section 173: Protection of Performances

"A performance is protected if it is — (a) a qualifying performance; and (b) given live — (i) in Singapore; or (ii) by a qualified individual." — Section 173, Copyright Act 2021

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Section 173 sets the foundational criteria for a performance to be eligible for protection under the Act. The provision requires that the performance must be a "qualifying performance," which generally refers to performances that meet certain standards or categories defined elsewhere in the Act or regulations. Additionally, the performance must be given live either within Singapore or by a qualified individual, ensuring that the protection applies to performances with a sufficient nexus to Singapore.

The purpose of this provision is to delineate the scope of protection, ensuring that only performances with a meaningful connection to Singapore or its performers are covered. This prevents extraterritorial application of the Act to performances unrelated to Singapore’s cultural and legal context.

Section 174: Duration of Protection

"A performance is protected for the period — (a) starting on the day the performance is given; and (b) ending 70 years after the end of the year in which the performance is given." — Section 174, Copyright Act 2021

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Section 174 prescribes the temporal scope of protection for performances. Protection commences on the day the performance is given and extends for 70 years after the end of that calendar year. This lengthy duration aligns with international standards, such as those under the Berne Convention, and reflects the policy objective of providing performers with a prolonged period to exploit their rights commercially and morally.

This extended protection period incentivizes creativity and investment in live performances by ensuring that performers and their successors can benefit financially and reputationally from their work for a significant time.

Section 175: Infringing Use — General

"Subject to Part 5 (permitted uses), a person makes an infringing use of a protected performance if — (a) the person does any of the following acts: (i) while the performance is live — (A) directly or indirectly records the performance in any manner or medium; (B) communicates the performance to the public; or (C) causes the performance to be seen or heard (or both) in public; (ii) makes a copy of a recording of the performance; (iii) publishes a recording of the performance, but only if no recording of the performance has been published; (iv) makes a recording of the performance available to the public (on a network or otherwise) in a way that the recording may be accessed by any person on demand; and (b) the act is done — (i) when the performance is protected; (ii) in Singapore; and (iii) without the rights owner’s authority." — Section 175, Copyright Act 2021

Verify Section 175 in source document →

Section 175 defines the acts that constitute infringing use of a protected performance. It covers a broad range of unauthorized activities, including recording (both direct and indirect), communication to the public, copying, publishing, and making recordings available on demand. The provision is carefully crafted to protect performers against unauthorized exploitation of their live performances and recordings thereof.

The inclusion of both direct and indirect recording ensures that not only live capture but also recording from broadcasts or other communications is regulated. The requirement that the infringing act occurs "when the performance is protected," "in Singapore," and "without the rights owner’s authority" establishes clear jurisdictional and authorization boundaries.

This provision exists to prevent unauthorized commercial or public exploitation of performances, thereby protecting the economic interests and moral rights of performers.

Section 176: Infringing Use — Commercial Dealing in Unauthorized Recordings

"Subject to Part 5 (permitted uses), a person makes an infringing use of a protected performance if — (a) the person does any of the following acts: (i) deals commercially in a recording of the performance; (ii) imports a recording of the performance for the purpose of commercially dealing; (b) the act is done — (i) when the performance is protected; (ii) in Singapore; and (iii) without the rights owner’s authority; and (c) the person knows or ought reasonably to know that the recording — (i) is made without the rights owner’s authority; and (ii) either — (A) is made on or after 21 November 2021 in circumstances that constitute an infringing use of the performance under section 175; or (B) was made before 21 November 2021 in circumstances that constitute an unauthorised use of the performance under the 1987 Act." — Section 176, Copyright Act 2021

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Section 176 targets commercial dealings in unauthorized recordings of protected performances. It criminalizes the commercial sale, distribution, or importation of such recordings without the rights owner’s consent, provided the person involved knows or should reasonably know the recording is unauthorized.

This provision is crucial to combat piracy and unauthorized commercialization of performances, which can significantly undermine the economic value of performers’ rights. By including knowledge or constructive knowledge as an element, the law discourages willful blindness and encourages due diligence in commercial transactions involving recordings.

The cross-reference to the 1987 Act ensures continuity and legal certainty for recordings made before the new Act’s commencement date, reflecting a transitional safeguard.

Section 177: Action for Infringing Use

"A performer of a protected performance may bring an action in the Court against any person who makes an infringing use of the performance." — Section 177, Copyright Act 2021

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Section 177 empowers performers with the right to initiate legal proceedings against infringers. This provision is fundamental to the enforcement of performers’ rights, providing a direct remedy to address unauthorized uses and seek relief such as injunctions, damages, or account of profits.

By granting standing to performers, the Act recognizes their proprietary interest in their performances and facilitates access to justice.

Section 178: Limitation of Action

"An action under section 177 for an infringing use of a performance may not be brought more than 6 years after the infringing use takes place." — Section 178, Copyright Act 2021

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Section 178 imposes a six-year limitation period for bringing infringement actions. This limitation period balances the interests of performers in enforcing their rights with the need for legal certainty and finality for potential defendants.

Limiting the timeframe for claims encourages timely enforcement and prevents stale claims that could be prejudicial due to faded evidence or changed circumstances.

Definitions Relevant to the Protection of Performances

Understanding the precise meaning of terms used in the Act is essential for interpreting the scope of protection and infringement. Section 172 provides key definitions:

"“direct”, in relation to recording a performance, means recording the live performance;" — Section 172, Copyright Act 2021

Verify Section 172 in source document →

"“indirect”, in relation to recording a performance, means recording from a communication of the performance." — Section 172, Copyright Act 2021

Verify Section 172 in source document →

These definitions clarify the modes of recording that are regulated. "Direct" recording refers to capturing the live event itself, such as filming or audio recording during the performance. "Indirect" recording refers to capturing the performance from a broadcast or other communication medium, such as recording a live stream or radio transmission.

The distinction is important because it ensures that both primary and secondary forms of unauthorized recording are covered, preventing loopholes that could be exploited by infringers.

Penalties and Enforcement Measures

The provided excerpt does not specify explicit penalties for non-compliance with the provisions on protection of performances. Section 179, titled "Remedies and border enforcement measures," is referenced but its content is not included. Typically, such provisions would outline civil remedies, criminal sanctions, and border control measures to prevent importation of infringing goods.

The absence of explicit penalties in the excerpt suggests that enforcement relies primarily on civil actions under Section 177 and possibly other parts of the Act. The detailed remedies and enforcement mechanisms would be found in the full text of the Act, ensuring a comprehensive approach to protecting performers’ rights.

Cross-References to Other Parts and Legislation

The Act cross-references other parts and legislation to provide a coherent legal framework:

Part 5 (Permitted Uses): Sections 175 and 176 explicitly state that infringing use is "subject to Part 5 (permitted uses)." This indicates that certain uses of protected performances may be allowed without authorization, such as fair dealing exceptions for criticism, review, or educational purposes. This balance protects public interest and freedom of expression.
The 1987 Act: Section 176(c)(ii)(B) refers to unauthorized uses under the 1987 Act for recordings made before 21 November 2021. This ensures continuity and legal certainty for performances protected under the previous legislation, facilitating a smooth transition to the new legal regime.

These cross-references demonstrate the Act’s integration with existing legal principles and its accommodation of exceptions and transitional arrangements.

Conclusion

The Copyright Act 2021 provides robust protection for performers in Singapore, recognizing their creative contributions and granting them exclusive rights over their live performances and recordings. The key provisions analyzed—Sections 173 to 178—establish clear criteria for protection, define infringing acts comprehensively, and empower performers to enforce their rights within a reasonable timeframe.

The inclusion of precise definitions and cross-references to permitted uses and prior legislation reflects a balanced approach that safeguards performers’ interests while accommodating public and commercial considerations. Although explicit penalties are not detailed in the excerpt, the framework supports effective enforcement through civil actions and likely other remedies outlined elsewhere in the Act.

Overall, these provisions exist to encourage artistic creativity, prevent unauthorized exploitation, and maintain Singapore’s compliance with international intellectual property standards.

Sections Covered in This Analysis

Section 172 – Definitions ("direct" and "indirect" recording)
Section 173 – Protection of performances
Section 174 – Duration of protection
Section 175 – Infringing use (general)
Section 176 – Infringing use (commercial dealing in unauthorized recordings)
Section 177 – Action for infringing use
Section 178 – Limitation of action

Source Documents

For the authoritative text, consult SSO.

Written by Sushant Shukla

Topics

Singapore SSOStatutes Legislation