Copyright: site-blocking in Singapore

In 2014, Singapore amended its Copyright Act to enable the courts to make an order, requiring a network service provider (NSP) whose services have been or are being used to access an online location to commit or facilitate infringement of copyright, to block access to a “flagrantly infringing online location”.  The amendment is aimed at combating online privacy by giving rights holders a more effective tool to disable access to pirate websites.

The new powers are proving effective.  Most recently, in February 2016, the Singapore High Court exercised its power under section 193DDA of the Copyright Act and ordered NSPs Singtel, M1, MyRepublic and ViewQuest to disable access to a piracy website, Solarmovie.ph, upon the application by the Motion Picture of America’s member studios. The Court held that Solarmovie.ph was “flagrantly infringing” copyright for having allowed internet users to download movies illegally from the site

There are four main highlights to the site-blocking framework:

1. Flagrantly infringing online location

A key issue is whether the online location satisfies the threshold of a “flagrantly infringing online location”.  This test is intended to ensure that only websites which are in blatant breach of copyright are caught within the scope of the framework; sites which offer primarily legitimate digital content and legitimate business services will not be. The statutory definition of a “flagrantly infringing online location” therefore focuses on the purpose of the online location as opposed to a technical definition.

The court may consider the following non-exhaustive factors, as to whether:

1. the primary purpose of the site is to commit or facilitate copyright infringement;
2. the site makes available or contains directories, indexes or categories of the means to commit or facilitate copyright infringement;
3. the owner or operator of the site demonstrates a disregard for copyright generally;
4. access to the site has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
5. the site contains guides or instructions to circumvent measures, or any order of any court, that disables access to the site on the ground of or related to copyright infringement; and
6. the volume of traffic at or frequency of access to the

Notably, points b) and e) suggests that the Singapore court may be likely to follow the English High Court’s decision in the Popcorn Time case, or the CJEU’s recent Stichtung Brein decision, allowing a site to be blocked even though it contained no copyright-infringing material itself but only means, such as peer-to-peer file sharing software or an index of copyright infringing material, to enable users to infringe.

The court’s power to grant a site-blocking order is, however, a discretionary one. The court may still decide not to grant a site-blocking order, after taking into account the circumstances of the case such as:

1. the harm that has been or may foreseeably be caused to the plaintiff;
2. the burden that the making of the order will place on the NSP;
3. the technical feasibility of complying with the order;
4. the effectiveness of the order;
5. any possible adverse effect on the business or operations of the NSP;
6. whether some other comparatively effective order would be less burdensome; and
7. all other matters which it considers relevant.

2. A “No-Fault” Framework vis-a-vis the NSPs

Before the introduction of the site-blocking framework, an owner or exclusive licensee of copyright could request NSPs to disable access to or remove copyright infringing material from its network by way of a “take-down” notice. However, NSPs are not statutorily obliged to comply with these notices. This limits an owner or exclusive licensee of copyright to remedies against NSPs that are predicated on a factual finding of primary or secondary liability for infringement. Such a regime not only generates uncertainty but also increased legal costs to all parties involved.

Under the new site-blocking framework, there is no need for an owner or exclusive licensee of copyright to establish liability on the part of the NSPs. Instead, the current framework is aimed at the infringing content and thus is built upon a “no fault” regime vis-à-vis the NSPs.

There is, however, uncertainty with regards to compliance costs incurred by the NSPs in the implementation of a site-blocking order. Even though the present framework provides a “no fault” regime, the courts and legislation have been silent as to who should bear such costs.  The importance of this question is shown by the fact that it is currently under appeal in the United Kingdom Supreme Court in the Richemont case, as the volume of site-blocking orders being imposed upon UK NSPs has reached a level where the capital and operational costs are material.

3. Procedural notification requirements

As part of the necessary safeguards of the interests of NSPs and website owners, stringent notice and service requirements are also instituted under the new site-blocking framework.

Before making an application for a court order, an owner or exclusive licensee of copyright must send a notice to the owner of the websites and also notify the NSPs of their intentions. They must then notify the website owners of any applications which have been made and serve a copy of the application on the affected NSPs, to ensure that the NSPs and website owners have their opportunity to present their cases before the Court or even to resolve the matter out of Court if possible.

4. Variation and revocation orders

The Singapore High Court may also vary the order made if it is satisfied, on an application, that there has been a material change in the circumstances or that it is otherwise appropriate in the circumstances to do so. For instance, where the website operator simply moves the site (i.e. change in URL, Domain Name or IP Address), an owner or exclusive licensee of copyright may apply to the Singapore High Court to vary the order’s terms.

The Singapore High Court may also revoke the order made if the Court is satisfied a) upon further evidence, that the order ought not to have been made; b) that the website has ceased to be a flagrantly infringing online location; or c) that it is otherwise appropriate in the circumstances to do so.

It may be argued that the current mechanisms in place impose too great a burden on the copyright holder or exclusive licensee in cases involving site-hopping since they will have to incur further costs to continue the order in effect.  But it is unlikely that the Singapore High Court would grant a site-blocking order excluding these requirements, for example by allowing the applicant to extend the scope of the order simply by notifying the defendants NSPs of the new address or domain name. This would potentially amount to a fettering of the Court’s discretion. It is more likely to follow the Federal Court of Australia position in Roadshow Films Pty Ltd v Telstra Corporation Ltd, where it declined to allow the applicant to extend the scope of the site-blocking orders without a further order to be determined by the Court.

Comment

The current site-blocking framework is definitely welcome given its promise of a more efficient judicial process which avoids implicating NSPs unnecessarily. However, as it stands, the internet-old problem of site-hopping remains an obstacle for rights holders seeking to protect their works online without incurring high costs.  Unfortunately, no jurisdiction has yet succeeded in eliminating that problem.  Nevertheless, these provisions, in spite of lingering uncertainty, are certainly going in the right direction in the global battle against online copyright piracy.