PART XIIIA
CIRCUMVENTION OF TECHNOLOGICAL MEASURES
Interpretation and effect of application of this
Part
261B.
—(1)
In
this Part, unless the context otherwise requires —"circumvent"
means to avoid, bypass, remove, deactivate,
descramble (where the copy is scrambled), decrypt (where the copy
is encrypted) or otherwise impair;
"copy"
, in relation to any work or other
subject-matter or any performance, means a copy of the work or subject-matter
or of a recording of the performance, and includes the original
version of the work or subject-matter or a recording of the performance;
"encryption
technology"
means technology
for scrambling and descrambling information using mathematical formulae
or algorithms;
"non-profit"
means not operated or conducted for
profit;
“performance”, “protection
period”, “recording” and “unauthorised
use” have the same
meanings as in Part XII;
"personally
identifying information"
means
information which can be used to identify persons using a network;
"technological
access control measure"
means
any technology, device or component that, in the normal course of
its operation, effectively controls access to a copy of —
(a)
a work or other subject-matter; or
(b)
a performance,
but excludes such technology, device
or component as the Minister may prescribe;
"technological
measure"
means a technological
access control measure or a technological protection measure;
"technological
protection measure"
means any
technology, device or component that, in the normal course of its
operation, effectively prevents or limits the doing of —
(a)
in relation to a copy of a work or
other subject-matter, any act comprised in the copyright in the
work or subject-matter; or
(b)
in relation to a copy of a performance,
an unauthorised use of the performance,
but excludes such technology, device
or component as the Minister may prescribe.
(2)
Nothing in this
Part shall affect any act done in relation to a work or other subject-matter
in which copyright no longer subsists, or in relation to a performance
the protection period of which has expired.
(3)
Nothing in this
Part shall affect —(a)
any copyright subsisting in a work
or other subject-matter;
(b)
any right in relation to a performance
or a recording thereof;
(c)
any limitation on copyright in a
work or other subject-matter, or on a right in relation to a performance
or a recording thereof; or
(d)
any defence to an action for infringement
of copyright, or for an unauthorised use of a performance,
under any provision of this Act.
Circumvention of technological measures
261C.
—(1)
Subject
to sections 261D and 261E, where a technological measure is applied
to a copy of a work or other subject-matter by or with the authorisation
of the owner of the copyright in the work or subject-matter in connection
with the exercise of the copyright, or to a copy of a performance
by or with the authorisation of the performer of the performance
in connection with the exercise of any right in the performance,
no person shall, without the authorisation of the owner of the copyright
or the performer of the performance, as the case may be —(a)
if the technological measure is a
technological access control measure, do any act which he knows
or ought reasonably to know circumvents the technological measure;
(b)
manufacture, import, distribute,
offer to the public, provide or otherwise traffic in any device,
product or component which —(i)
is promoted, advertised or marketed
for the purpose of circumventing the technological measure;
(ii)
has only a limited commercially significant
purpose or use other than to circumvent the technological measure;
or
(iii)
is designed or made primarily for
the purpose of circumventing the technological measure;
(c)
offer to the public or provide any
service which —(i)
is promoted, advertised or marketed
for the purpose of circumventing the technological measure;
(ii)
has only a limited commercially significant
purpose or use other than to circumvent the technological measure;
or
(iii)
is performed primarily for the purpose
of circumventing the technological measure.
(2)
An action may
be brought by the owner of the copyright or the performer of the
performance against a person who contravenes subsection (1).
(3)
An action shall
not be brought under subsection (2) in respect of any contravention
of subsection (1) after the expiration of 6 years from the time
when the contravention took place.
(4)
Where
a person contravenes subsection (1) (a) wilfully
and for the purpose of obtaining a commercial advantage or private financial gain, he shall be
guilty of an offence and shall be liable on conviction to a fine
not exceeding $20,000.
(5)
Where
a person contravenes subsection (1) (b) or (c) wilfully and for the purpose of obtaining
a commercial advantage or private financial
gain, he shall be guilty of an offence and shall be liable on
conviction to a fine not exceeding $20,000 or to imprisonment
for a term not exceeding 2 years or to both.
(6)
For the purposes
of subsection (5), a person shall not be treated as having contravened
subsection (1) (b) wilfully unless —(a)
in the case of a device, product
or component referred to in subsection (1) (b)
(i), he had himself —(i)
promoted, advertised or marketed
it; or
(ii)
authorised the promotion, advertising
or marketing of it,
for the purpose of circumventing the
technological measure;
(b)
in the case of a device, product
or component referred to in subsection (1) (b)
(ii), he knew or had reason to believe at the time of the contravention that
it had only a limited commercially significant purpose or use other than
to circumvent the technological measure; or
(c)
in the case of a device, product
or component referred to in subsection (1) (b)
(iii), he knew or had reason to believe at the time of the contravention that
it was designed or made primarily for the purpose of circumventing
the technological measure.
(7)
For the purposes
of subsection (5), a person shall not be treated as having contravened
subsection (1) (c) wilfully unless—(a)
in the case of a service referred
to in subsection (1) (c) (i), he had himself —(i)
promoted, advertised or marketed
it; or
(ii)
authorised the promotion, advertising
or marketing of it,
for the purpose of circumventing the
technological measure;
(b)
in the case of a service referred
to in subsection (1) (c) (ii), he knew or had reason
to believe at the time of the contravention that it had only a limited commercially
significant purpose or use other than to circumvent the technological
measure; or
(c)
in the case of a service referred
to in subsection (1) (c) (iii), he had himself —(i)
performed it; or
(ii)
authorised the performance of it,
primarily for the purpose of circumventing
the technological measure.
(8)
For the purposes
of subsections (4) and (5), a person does an act for the purpose
of obtaining a commercial advantage if the act is done to obtain
a direct advantage, benefit or financial gain for a business or
trade carried on by him.
(9)
Subsections (4)
and (5) shall not apply to any act done by or on behalf of a non-profit
library, any non-profit archives, an educational institution, an
institution assisting handicapped readers, an institution assisting
intellectually handicapped readers, or such public, non-commercial
broadcasting organisation as the Minister may prescribe.
(10)
This section does
not affect the import or sale of a device that does not render effective
a technological measure whose sole purpose is to control market
segmentation for access to cinematograph films, if the import or
sale of the device does not otherwise contravene any written law
including this Act.
Exceptions to prohibition on circumvention
261D.
—(1)
Subject
to subsection (3), section 261C (1) (a) is not
contravened by the doing of an act to circumvent a technological
measure if —(a)
the act is done to enable a non-profit
library, any non-profit archives, an educational institution, an
institution assisting handicapped readers, or an institution assisting
intellectually handicapped readers to have access to a work or other
subject-matter or recording of a performance which is not otherwise
available to the library, archives or institution, for the sole
purpose of determining whether to acquire a copy of the work or
other subject-matter or recording;
(b)
the technological measure has the
capability to collect or disseminate personally identifying information
to reflect the manner of use of a network by persons without providing
conspicuous notice of such collection or dissemination to those
persons, and the act is done for the sole purpose of identifying
and disabling the technological measure, provided that the act does
not affect the ability of any person to gain access to any work
or other subject-matter or recording of any performance;
(c)
the act is done in relation to a
work or other subject-matter or performance that is prescribed by
the Minister undersubsection (2);
(d)
the act is done —(i)
in good faith;
(ii)
in relation to a copy of a computer
program that is not an infringing copy; and
(iii)
with respect to particular elements
of the computer program that are not readily available to the person
doing the act,
for the sole purpose of achieving interoperability
of an independently created computer program with another computer
program;
(e)
the act is done when undertaking
research on any encryption technology, provided that —(i)
the person doing the act —(A)
is engaged in a legitimate course
of study in the field of encryption technology;
(B)
is employed or appropriately trained
or experienced in that field; or
(C)
is doing so on behalf of a person
so engaged, employed, trained or experienced;
(ii)
the act is necessary to conduct such
research;
(iii)
the act is done in good faith and
in relation to a copy of the work or subject-matter that is not
an infringing copy thereof or a copy of the performance that is
not an unauthorised recording thereof; and
(iv)
the person doing the act has made
a reasonable effort to obtain the authorisation of the owner of
the copyright in the work or subject-matter or the performer of
the performance to do the act;
(f)
the act consists of the inclusion
of a component or part in any technology, product or device for
the sole purpose of preventing access by minors to any material
on the Internet, provided that the technology, product or device
is not prohibited under section 261C (1) (b);
(g)
the act is done by or under the authority
of the owner of a computer, computer system or computer network
for the sole purpose of testing, investigating, or correcting a
security flaw or vulnerability of that computer, computer system
or computer network; or
(h)
the act is carried out by the Government
or by any person authorised by the Government for the purpose of
law enforcement, intelligence, national defence, essential security
or other similar purpose.
(2)
The Minister may,
by order published in the Gazette, exclude the
operation of section 261C (1) (a) in relation
to a specified work or other subject-matter or performance, or a
specified class of works or other subject-matters or performances,
if he is satisfied that any dealing with the work, subject-matter
or performance or with the class of works, subject-matters or performances,
being a dealing which does not amount to an infringement of copyright
therein or an unauthorised use thereof (as the case may be), has
been adversely impaired or affected as a result of the operation of
this section.
(3)
Subsection (1)
shall not apply if —(a)
in the case of an act referred to
in paragraph (b), (e) or
(g) of that subsection, the act violates a provision
of any written law other than this Act;
(b)
in the case of an act referred to
in paragraph (c), (d), (e) or (g) of that subsection,
the act infringes the copyright in the work or other subject-matter or
amounts to an unauthorised use of the performance; or
(c)
in the case of an act referred to
in paragraph (a) of that subsection, the act leads
to an infringement of the copyright in the work or other subject-matter
or to an unauthorised use of the performance, or otherwise violates
a provision of any other written law.
Exceptions to prohibition on making, etc., circumventing
device and offering circumventing service
261E.
—(1)
Subject
to subsections (2) and (3), section 261C (1) (b)
and (c) is not contravened by the doing of any
of the following:(a)
the manufacture, importation, distribution,
offering to the public or provision of a device, product or component,
or the offering to the public or provision of a service, to carry
out an act to circumvent a technological measure that is done —(i)
in good faith;
(ii)
in relation to a copy of a computer
program that is not an infringing copy; and
(iii)
with respect to particular elements
of the computer program that are not readily available to the person
doing the act,
for the sole purpose of achieving interoperability
of an independently created computer program with another computer
program;
(b)
the manufacture, importation, distribution,
offering to the public or provision of a device, product or component,
or the offering to the public or provision of a service, to carry
out an act to circumvent a technological measure referred to in
section 261D (1) (e);
(c)
the manufacture, importation, distribution,
offering to the public or provision of a component or part referred
to in section 261D (1) (f);
(d)
the manufacture, importation, distribution,
offering to the public or provision of a device, product or component,
or the offering to the public or provision of a service, to carry
out an act to circumvent a technological measure referred to in
section 261D (1) (g);
(e)
an act carried out by the Government
or by any person authorised by the Government for the purpose of
law enforcement, intelligence, national defence, essential security
or other similar purpose.
(2)
Paragraphs (b), (c) and (d)
of subsection (1) apply only if the technological measure is a technological
access control measure.
(3)
Subsection (1)
shall not apply if —(a)
in the case of an act referred to
in paragraph (a) of that subsection, the circumvention
referred to in that paragraph infringes the copyright in the work
or other subject-matter or amounts to an unauthorised use of the
performance; or
(b)
in the case of an act referred to
in paragraph (b) or (d)
of that subsection, the circumvention referred to in that paragraph
infringes the copyright in the work or other subject-matter or amounts
to an unauthorised use of the performance, or otherwise violates
a provision of any other written law.
Relief which court may grant
261F.
—(1)
In
an action brought under section 261C (2), the types of relief that the
court may grant, if it is satisfied that the defendant has contravened
section 261C (1), include —(a)
an injunction (subject to such terms,
if any, as the court thinks fit); and
(b)
either of the following:(i)
damages;
(ii)
where the plaintiff has elected for
an award of statutory damages in lieu of damages, statutory damages
of not more than $20,000.
(2)
In addition to
the relief referred to in subsection (1), the court may order that any
article —(a)
by means of which, or in relation
to which, the act giving rise to the contravention of subsection
261C (1) was or is being carried out; and
(b)
which is in the possession of the
defendant or before the court,
be delivered up to the plaintiff or
destroyed.
(3)
For the purposes
of subsection (1) (b) (i), damages include any
profits that are attributable to the act giving rise to the contravention
of subsection 261C (1).
(4)
In awarding statutory
damages under subsection (1) (b) (ii), the court
shall have regard to —(a)
the nature or purpose of the act
concerned, including whether the act was of a commercial nature
or otherwise;
(b)
the flagrancy of the act;
(c)
whether the defendant acted in bad
faith;
(d)
any loss that the plaintiff has suffered
or is likely to suffer by reason of the act;
(e)
any benefit shown to have accrued
to the defendant by reason of the act;
(f)
the conduct of the parties before
or during the proceedings;
(g)
the need to deter other similar acts;
and
(h)
all other relevant matters.
(5)
Notwithstanding
subsection (1), where, in an action for a contravention of section
261C (1) (b), such contravention is established
but it is also established that —(a)
in the case of a device, product
or component referred to in section 261C (1) (b)
(i), the defendant did not himself promote, advertise or market
it, or authorise the promotion, advertising or marketing of it,
for the purpose of circumventing the technological measure;
(b)
in the case of a device, product
or component referred to in section 261C (1) (b)
(ii), at the time of the contravention, the defendant was not aware, and
had no reasonable grounds for suspecting, that it had only a limited commercially
significant purpose or use other than circumventing the technological
measure; or
(c)
in the case of a device, product
or component referred to in section 261C (1) (b)
(iii), at the time of the contravention, the defendant was not aware, and
had no reasonable grounds for suspecting, that it was designed or
made primarily for the purpose of circumventing the technological
measure,
the plaintiff shall not be entitled,
as against the defendant, to any damages or statutory damages for
the contravention.
(6)
Notwithstanding
subsection (1), where, in an action for a contravention of section
261C (1) (c), such contravention is established
but it is also established that —(a)
in the case of a service referred
to in section 261C (1) (c) (i), the defendant did
not himself promote, advertise or market it, or authorise the promotion, advertising
or marketing of it, for the purpose of circumventing the technological
measure;
(b)
in the case of a service referred
to in section 261C (1) (c) (ii), at the time
of the contravention, the defendant was not aware, and had no reasonable grounds
for suspecting, that it had only a limited commercially significant purpose
or use other than to circumvent the technological measure; or
(c)
in the case of a service referred
to in section 261C (1) (c) (iii), the defendant did
not himself perform it, or authorise the performance of it, primarily
for the purpose of circumventing the technological measure,
the plaintiff shall not be entitled
to any damages or statutory damages against the defendant for the
contravention.
Enforcement measures
261G.
—(1)
The
court before which a person is charged with an offence under section
261C (4) or (5) may, whether he is convicted of the offence or not,
order that any article that appears to the court to be used predominantly
for circumventing a technological measure used in connection with —(a)
the exercise of the copyright in
a work or other subject-matter by the owner of the copyright; or
(b)
any right in a performance by the
performer of the performance,
in the possession of the alleged offender
or before the court, be destroyed or delivered up to the owner or
exclusive licensee of the copyright concerned or the performer of
the performance, as the case may be, or otherwise dealt with in
such manner as the court thinks fit.
(2)
If information
is given upon oath to a court that there is reasonable cause for suspecting
that there is in any premises any article or document which is evidence that
an offence under section 261C (4) or (5) has been committed, the
court may issue, either unconditionally or subject to such conditions
as the court thinks fit, a warrant authorising a police officer
to enter and search the premises for the articles and documents
which are specified in the warrant, whether specifically or in any
general category, and to seize any such articles and documents found
at the premises.
(3)
If an article
was seized under subsection (2) and —(a)
in proceedings brought under section
261C (4) or (5), no order is made as to the disposal of the article,
whether under subsection (1) or otherwise; or
(b)
no such proceedings are instituted
within 6 months of the seizure,
the article shall be returned to the
person in whose possession it was when it was seized or, if it is
not reasonably practicable to return it to that person, shall be
disposed of in accordance with the law regulating the disposal of
lost or unclaimed property in the hands of police authorities.
(4)
If a document
was seized under subsection (2) and no proceedings under section
261C (4) or (5) are instituted within 6 months of the seizure, the
document and all copies of the document shall be returned to the
person in whose possession the document was when it was seized or,
if it is not reasonably practicable to return the document and copies
to that person, shall be disposed of in accordance with the law regulating
the disposal of lost or unclaimed property in the hands of police
authorities.
(5)
In this section —"document"
means anything in which information
of any description is recorded;
"premises"
includes any land, building, structure
and conveyance.