PART V
REMEDIES FOR INFRINGEMENTS OF COPYRIGHT
Division 1 — Preliminary
Interpretation of this Part
118.
—(1)
In
this Part, “action” means a proceeding of a civil
nature between parties, and includes a counterclaim.
(2)
In the application of this Part in
relation to a counterclaim, references to the plaintiff and to the
defendant shall be read as references to the defendant and to the plaintiff,
respectively.
Division 2 — Actions
by Owner of Copyright
Actions for infringement
119.
—(1)
Subject
to the provisions of this Act, the owner of a copyright may bring an
action for an infringement of the copyright.
(2)
Subject
to the provisions of this Act, in an action for an infringement
of copyright, the types of relief that the court may grant include
the following:(a)
an injunction (subject to such terms,
if any, as the court thinks fit);
(b)
damages;
(c)
an account of profits;
(d)
where the plaintiff has elected for
an award of statutory damages in lieu of damages or an account of
profits, statutory damages of —(i)
not more than $10,000 for
each work or subject- matter in respect of which the copyright has
been infringed; but
(ii)
not more than $200,000 in
the aggregate, unless the plaintiff proves that his actual loss
from such infringement exceeds $200,000.
(2A)
When
the court awards any damages under
subsection (2) (b),
the court may also make an order under subsection (2) (c)
for an account of any profits attributable to the infringement that
have not been taken into account in computing the damages.
(2B)
Except
as provided for in subsection (2A), the types of relief referred
to in subsection (2) (b), (c)
and (d) are mutually exclusive.
(2C)
For
the purposes of subsection (2) (d), all the
parts of a collective work constitute one work.
(3)
Where, in an action for infringement
of copyright, it is established that an infringement was committed
but it is also established that, at the time of the infringement,
the defendant was not aware, and had no reasonable grounds for suspecting, that
the act constituting the infringement was an infringement of the
copyright, the plaintiff shall not be entitled under this section
to any damages against the defendant in respect of the infringement,
but shall be entitled to an account of profits in respect of the
infringement whether any other relief is granted under this section
or not.
(4)
Where, in an action under this section —(a)
an infringement of copyright is established;
and
(b)
the court is satisfied that it is
proper to do so, having regard to --(i)
the flagrancy of the infringement;
(ii)
any benefit shown to have accrued
to the defendant by reason of the infringement; and
(iii)
all other relevant matters,
the
court may, in assessing damages for the infringement under
subsection (2) (b), award such additional
damages as it considers appropriate in the circumstances.
(5)
In
awarding statutory damages under subsection (2) (d),
the court shall have regard to —(a)
the nature and purpose of the infringing
act, including whether the infringing act was of a commercial nature
or otherwise;
(b)
the flagrancy of the infringement;
(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 infringement;
(e)
any benefit shown to have accrued
to the defendant by reason of the infringement;
(f)
the conduct of the parties before
and during the proceedings;
(g)
the need to deter other similar infringements;
and
(h)
all other relevant matters.
(6)
In
this section —"collective
work"
means a work in which
relevant materials, constituting separate and independent works
in themselves, are assembled into a collective whole;
"relevant
material"
has the same meaning
as in section 7A (3).
Order for delivery up of infringing copies, etc.
120.
—(1)
Subject
to the provisions of this Act, the court may, in addition to any relief
granted under section 119 in any action for an infringement of copyright brought
under that section, order any infringing copy, or any article which
has been used for making
infringing copies, in the possession of the defendant or before
the court to be delivered up to the plaintiff.
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(2)
No order shall be made under this section
unless the court also makes, or it appears to the court that there
are grounds for making, an order under section 120A.
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(3)
A person to whom an infringing copy
or other object is delivered up pursuant to an order made under
this section shall, if an order under section 120A is not made, retain
the copy or object pending the making of an order, or the decision
not to make an order, under section 120A.
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Order for disposal of infringing copies, etc.
120A.
—(1)
An
application may be made to the court for an order that an infringing copy
or other object delivered up pursuant to an order made under section
120 be —(a)
forfeited to the plaintiff; or
(b)
destroyed or otherwise dealt with
as the court thinks fit.
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(2)
In considering what order, if any,
should be made under this section, the court shall have regard to —(a)
whether other remedies available in
an action for infringement of copyright would be adequate to compensate
the plaintiff and to protect the interests of the plaintiff; and
(b)
the need to ensure that no infringing
copy is disposed of in a manner that would adversely affect the
plaintiff.
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(3)
The court shall issue directions as
to the service of notice on persons having an interest in the copy
or other object.
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(4)
Any person having an interest in the
copy or other object is entitled —(a)
to appear in proceedings for an order
under this section, whether or not that person is served with notice;
and
(b)
to appeal against any order made,
whether or not that person appears in the proceedings.
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(5)
An order made under this section shall
not take effect until the end of the period within which notice
of an appeal may be given or, if before the end of that period notice
of appeal is duly given, until the final determination or abandonment
of the proceedings on the appeal.
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(6)
Where there is more than one person
interested in a copy or other object, the court may direct that
the object be sold, or otherwise dealt with, and the proceeds divided,
and shall make any other order as it thinks just.
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(7)
If the court decides that no order
should be made under this section, the person in whose possession
the copy or other object was before being delivered up shall be entitled
to its return, and the court may order the defendant to pay to the
plaintiff such damages as the court thinks just and equitable.
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Division 3 — Proceedings
where Copyright is subject to Exclusive Licence
Interpretation of this Division
121.
In
this Division —"if
the licence had been an assignment"
means
if, instead of the licence, there had been granted (subject to conditions
corresponding as nearly as practicable with those subject to which
the licence was granted) an assignment of the copyright in respect
of its application to the doing, at the places and times authorised
by the licence, of the acts so authorised;
"the
other party"
means —
(a)
in relation to the owner of the copyright — the
exclusive licensee; and
(b)
in relation to the exclusive licensee — the
owner of the copyright.
Application
122.
This
Division shall apply to proceedings in relation to a copyright in
respect of which an exclusive licence has been granted and is in
force at the time of the events to which the proceedings relate.
Rights of exclusive licensee
123.
Subject
to this Division, the exclusive licensee shall, except against the
owner of the copyright, have the same rights of action as the owner
of the copyright would have, and be entitled to the same remedies
as he would be entitled to, by virtue of sections 119, 120 and 120A
if the licence had been an assignment, and those rights and remedies
are concurrent with the rights and remedies of the owner of the
copyright under those sections.
[38/99]
Joinder of owner or
exclusive licensee as party
124.
Where —(a)
an action is brought by the owner
of the copyright or by the exclusive licensee; and
(b)
the action, insofar as it is brought
under section 119, relates, in whole or in part, to an infringement
in respect of which the owner and the licensee have concurrent rights
of action under that section,
the owner or licensee, as the case
may be, shall be entitled to proceed with the action without joining
the other party as a plaintiff or adding the other party as a defendant
in the action, unless the court orders otherwise.
Defences available against exclusive licensee
125.
In
an action brought by the exclusive licensee by virtue of this Division,
a defence under this Act that would have been available to a defendant
in the action if the action had been brought by the owner of the
copyright shall be available to that defendant as against the exclusive
licensee.
Assessment of damages where exclusive licence granted
126.
Where
an action to which section 124 applies is brought and the owner
of the copyright and the exclusive licensee are not both plaintiffs
in the action, the court, in assessing damages or
statutory damages in respect of an infringement of a kind referred
to in that section, shall —(a)
if the plaintiff is the exclusive
licensee — take into account any liabilities, in respect
of royalties or otherwise, to which the licence is subject; and
(b)
whether the plaintiff is the owner
of the copyright or the exclusive licensee — take into
account any pecuniary remedy already awarded to the other party
under section 119 in respect of that infringement, or any right
of action exercisable by the other party under that section in respect
of that infringement, as the case requires.
Apportionment of profits between owner and exclusive
licensee
127.
Where —(a)
an action, insofar as it is brought
under section 119, relates, in whole or in part, to an infringement
in respect of which the owner of the copyright and the exclusive
licensee have concurrent rights of action under that section; and
(b)
in that action, whether the owner
of the copyright and the exclusive licensee are both parties or
not, an account of profits is directed to be taken in respect of
that infringement,
then, subject to any agreement of which
the court is aware by which the application of those profits is
determined as between the owner of the copyright and the exclusive
licensee, the court shall apportion the profits between them in
such a manner as the court considers just and shall give such directions
as the court considers appropriate for giving effect to that apportionment.
Separate actions in relation to the same infringement
128.
In
an action brought by the owner of the copyright or by the exclusive
licensee —(a)
a
judgment or order for the payment of damages or
statutory damages in respect of an infringement of copyright
shall not be given or made under section 119 if a final judgment
or order has been given or made in favour of the other party directing
an account of profits under that section in respect of the same
infringement; and
(b)
a
judgment or order for an account of profits in respect of an infringement of
copyright shall not be given or made under that section if a final
judgment or order has been given or made in favour of the other
party awarding damages or statutory damages or
directing an account of profits under that section in respect of
the same infringement.
Liability for costs
129.
Where,
in an action to which section 124 applies, whether brought by the
owner of the copyright or by the exclusive licensee, the other party
is not joined as a plaintiff (either at the commencement of the
action or at a later time), but is added as a defendant, the other
party is not liable for any costs in the action unless he enters an
appearance and takes part in the proceedings.
Division 4 — Proof
of Facts in Copyright Proceedings
Presumptions as to subsistence and ownership of copyright
130.
—(1)
In
an action brought by virtue of this Part —(a)
copyright shall be presumed to subsist
in the work or other subject-matter to which the action relates
if the defendant does not put in issue the question whether copyright
subsists in the work or other subject-matter; and
(b)
where the subsistence of the copyright
is established — the plaintiff shall be presumed to be
the owner of the copy- right if he claims to be the owner of the
copyright and the defendant does not put in issue the question
of his ownership.
(1A)
Where
the defendant puts in issue the question of whether copyright subsists in
the work or other subject-matter or whether the plaintiff is the
owner of the copyright, but does not satisfy the court that he does
so in good faith, the presumption as to the subsistence or ownership
of copyright under subsection (1) (a) or (b), as the case may be, shall apply notwithstanding
that the defendant puts that question in issue.
(1B)
Where
the defendant, in good faith, puts in issue the question of whether copyright
subsists in the work or other subject-matter or whether the plaintiff
is the owner of the copyright, an affidavit made on behalf of the
plaintiff in which the plaintiff makes assertions of facts relevant
to showing —(a)
that copyright subsists in the work
or other subject-matter; and
(b)
that he is the owner of the copyright,
shall be admitted in evidence and shall
be prima facie proof of the matters stated therein until the contrary
is proved, unless the court directs that oral evidence be adduced
to prove those matters.
(2)
Where a defendant, without good faith,
puts in issue the questions of whether copyright subsists in a work
or other subject-matter to which the action relates, or the ownership
of copyright in such work or subject-matter, thereby occasioning
unnecessary costs or delay in the proceedings, the court may direct
that any costs to the defendant in respect of the action shall not
be allowed to him and that any costs occasioned by the defendant
to other parties shall be paid by him to such other parties.
Presumptions in relation to authorship of work
131.
—(1)
Where
a name purporting to be that of the author of a literary, dramatic, musical
or artistic work appeared on copies of the work as published or
a name purporting to be that of the author of an artistic work appeared
on the work when it was made, the person whose name so appeared,
if it was his true name or a name by which he was commonly known,
shall, in an action brought by virtue of this Part, be presumed,
unless the contrary is established, to be the author of the work
and to have made the work in circumstances to which section 30 (4),
(5) and (6) does not apply.
(2)
Where a work is alleged to be a work
of joint authorship, subsection (1) shall apply in relation to each
person alleged to be one of the authors of the work as if references
in that subsection to the author were references to one of the authors.
(3)
Where, in an action brought by virtue
of this Part in relation to a photograph —(a)
it is established that, at the time
when the photograph was taken, a person was the owner of the material
on which the photograph was taken or, if the ownership of that material
as at that time is not established, that a person was the owner
of the apparatus by which the photograph was taken; or
(b)
neither the ownership as at the time
when the photograph was taken of the material on which it was taken
nor the ownership as at that time of the apparatus by which it was
taken is established but it is established that, at the time of
the death of a person, the photograph was owned by the person or, if
the ownership of the photograph as at that time is not established,
was in the possession or custody of the person,
the person shall be presumed, unless
the contrary is established, to have been the person who took the
photograph.
Presumptions in relation to publisher of work
132.
Where,
in an action brought by virtue of this Part in relation to a literary,
dramatic, musical or artistic work, section 131 does not apply,
but it is established —(a)
that
the work was first published in Singapore and was so published during the
period of 70
years that ended immediately before the commencement of the
calendar year in which the action was brought; and
(b)
that a name purporting to be that
of the publisher appeared on copies of the work as first published,
then, unless the contrary is established,
copyright shall be presumed to subsist in the work and the person
whose name so appeared shall be presumed to have been the owner
of that copyright at the time of the publication.
Presumptions where author has died
133.
—(1)
Where,
in an action brought by virtue of this Part in relation to a literary, dramatic,
musical or artistic work, it is established that the author is dead —(a)
the work shall be presumed to be an
original work unless the contrary is established; and
(b)
if it is alleged by the plaintiff
that a publication specified in the allegation was the first publication
of the work, and that it took place in a country and on a date so
specified, that publication shall be presumed, unless the contrary
is established, to have been the first publication of the work,
and to have taken place in that country and on that date.
(2)
Where —(a)
a literary, dramatic, musical or artistic
work has been published;
(b)
the publication was anonymous or is
alleged by the plaintiff to have been pseudonymous; and
(c)
it is not established that the work
has ever been published under the true name of the author, or under
a name by which he was commonly known, or that the identity of the
author is generally known or can be ascertained by reasonable inquiry,
subsection (1) (a)
and (b) shall apply, in an action brought by
virtue of this Part in relation to the work, in like manner as that
subsection shall apply where it is established that the author is
dead.
Evidence in relation to proceedings
134.
In
an action brought by virtue of this Part in relation to copyright
in a sound recording, if records embodying the recording as supplied
to the public bear a label or other mark stating —(a)
that a person specified on the label
or mark was the owner of copyright in the recording;
(b)
that the recording was first published
in a specified year; or
(c)
that the recording was first published
in a specified country,
the label or mark shall be sufficient
evidence of the facts so stated except insofar as the contrary is
established.
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Presumptions in relation to maker of film
135.
Where
the name of a person appeared on copies of a cinematograph film
as made available to the public in such a way as to imply that the
person was the maker of the film and, in the case of a person other
than a body corporate, that name was his true name or a name by
which he was commonly known, that person shall, in an action brought
by virtue of this Part, be presumed, unless the contrary is established, to
be the maker of the film and to have made the film in circumstances
to which section 98 (3) does not apply.
Division 5 — Offences
Offences
136.
—(1)
A
person who at a time when copyright subsists in a work —(a)
makes for sale or hire;
(b)
sells or lets for hire, or by way
of trade offers or exposes for sale or hire; or
(c)
by way of trade exhibits in public,
any article which he knows, or ought
reasonably to know, to be an infringing copy of the work shall be
guilty of an offence and shall be liable on conviction to a fine not
exceeding $10,000 for the article or for each article in
respect of which the offence was committed or $100,000,
whichever is the lower, or to imprisonment for a term not exceeding
5 years or to both.
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(2)
A person who at a time when copyright
subsists in a work has in his possession or imports into Singapore
any article which he knows, or ought reasonably to know, to be an
infringing copy of the work for the purpose of —(a)
selling, letting for hire, or by way
of trade offering or exposing for sale or hire, the article;
(b)
distributing the article for the purpose
of trade, or for any other purpose to an extent that will affect
prejudicially the owner of the copyright in the work; or
(c)
by way of trade exhibiting the article
in public,
shall be guilty of an offence and shall
be liable on conviction to a fine not exceeding $10,000
for the article or for each article in respect of which the offence
was committed or $100,000, whichever is the lower, or to
imprisonment for a term not exceeding 5 years or to both.
[6/98]
(3)
Any person who, at a time when copyright
subsists in a work, distributes, either —(a)
for purposes of trade; or
(b)
for other purposes, but to such an
extent as to affect prejudicially the owner of the copyright,
articles which he knows, or ought reasonably
to know, to be infringing copies of the work, shall be guilty of
an offence and shall be liable on conviction to a fine not exceeding $50,000
or to imprisonment for a term not exceeding 3 years or to both.
(3A)
Where,
at any time when copyright subsists in a work ––(a)
a person does any act that constitutes
an infringement of the copyright in a work other than an act referred
to in subsection (1), (2), (3) or (6);
(b)
the infringement of the copyright
in the work by the person is wilful; and
(c)
either or both of the following apply:(i)
the extent of the infringement is
significant;
(ii)
the person does the act to obtain
a commercial advantage,
the person 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 6 months or to both
and, in the case of a second or subsequent offence, to a fine not
exceeding $50,000 or to imprisonment for a term not exceeding
3 years or to both.
(4)
A person who, at a time when copyright
subsists in a work, makes or has in his possession an article specifically
designed or adapted for making copies of the work that the person
knows, or ought reasonably to know, is to be used for making infringing
copies of the work, shall be guilty of an offence and shall be liable
on conviction to a fine not exceeding $20,000 for each
such article in respect of which the offence is committed or to
imprisonment for a term not exceeding 2 years or to both.
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(5)
Subsections (1) to (4) shall apply
in relation to copyright subsisting in any subject-matter by virtue
of Part IV in like manner as they apply in relation to copyright subsisting
in a work by virtue of Part III.
(6)
Any person who for his private profit
causes a literary, dramatic or musical work to be performed in public,
or causes a cinematograph film to be seen or heard or seen and heard
in public, other than by the reception of a television broadcast
or cable programme, where he knows, or ought reasonably to know,
that copyright subsists in the work or cinematograph film and that
the performance constitutes an infringement of the copyright, 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.
(6A)
For
the purposes of subsection (3A) (c) (i), in
determining whether the extent of the infringement is significant,
the court shall have regard to —(a)
the volume of any articles that are
infringing copies;
(b)
the value of any articles that are
infringing copies;
(c)
whether the infringement has a substantial
prejudicial impact on the owner of the copyright; and
(d)
all other relevant matters.
(6B)
For
the purposes of subsection (3A) (c) (ii), 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.
(7)
For
the purposes of this section (other than subsection
(3A)), any person who has in his possession 5 or more infringing
copies of any work or other subject-matter shall, unless the contrary
is proved, be presumed —(a)
to be in possession of such copies
otherwise than for private and domestic use; or
(b)
to be in possession of such copies
for the purpose of sale.
(8)
The
court before which a person is charged with an offence by reason
of a contravention of any of the provisions of this section may,
whether he is convicted of the offence or not, order that any article
that appears to the court to be an infringing copy or any article
which has been used for
making infringing copies in the possession of the alleged offender
or before the court, be destroyed or delivered up to the owner of
the copyright concerned or otherwise dealt with in such manner as
the court thinks fit.
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(9)
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 subsection (1),
(2), (3), (3A) or (4) 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.
(10)
If an article was seized under subsection
(9) and —(a)
in proceedings brought under this
section, no order is made under subsection (8) as to the article;
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.
[6/98]
(11)
If a document was seized under subsection
(9) and no proceedings under this section 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.
[6/98]
(12)
For the purposes of this section —"document"
means anything in which information
of any description is recorded;
"premises"
includes any land, building, structure
and conveyance.
[6/98]
Affidavit evidence
137.
—(1)
An
affidavit made before a notary public by or on behalf of the owner of
the copyright in any work or other subject-matter and stating —(a)
that at the time specified therein,
copyright subsisted in the work or other subject-matter;
(b)
that he or the person named therein
is the owner of the copyright; and
(c)
that the copy of the work or other
subject-matter annexed thereto is a true copy thereof,
shall be admitted in evidence in any
proceedings for an offence under this Part and shall be prima facie
proof of the matters stated therein until the contrary is proved.
(2)
The court before which such affidavit
is produced shall presume that the affidavit was made by or on behalf
of the owner of the copyright.
(3)
If an accused to any proceedings for
an offence under this Part desires in good faith that the person
who made an affidavit referred to in subsection (1) be cross-examined
with respect to the matters in the affidavit, the affidavit may
not be used in the proceedings unless the person appears as a witness
for such cross-examination or the court before which the proceedings
are being conducted, in its discretion, permits the affidavit to
be used without the person so appearing.
Powers of police officer
138.
—(1)
Any
police officer may arrest without warrant any person who, in any street
or public place —(a)
sells or exposes or offers for sale;
or
(b)
has, or is reasonably suspected of
having, in his possession for the purpose of selling or letting
for hire,
any infringing copy of any work or other
subject-matter.
(2)
Any
authorised officer may, without a warrant issued under section 136
(9) —(a)
stop, search and board, whether forcibly
or otherwise, any conveyance in which he reasonably suspects that
there is any infringing copy of any work or other subject-matter;
and
(b)
seize, remove or detain any such
infringing copy and anything which appears to him —(i)
to be or to contain; or
(ii)
to be likely to be or to contain,
evidence of an offence under this Act.
(3)
In
this section, “authorised officer” means —(a)
a police officer;
(b)
an officer of customs as defined
in the Customs Act (Cap. 70);
(c)
an immigration officer as defined
in the Immigration Act (Cap. 133); or
(d)
any officer or class or description
of officers appointed by the Minister, by notification in the Gazette, to exercise the powers and perform
the duties conferred and imposed on an authorised officer by this
section.
Advertisement for supply of infringing copies of
computer programs
139.
—(1)
Any
person who, by any means, publishes, or causes to be published,
in Singapore an advertisement for the supply in Singapore (whether
from within or outside Singapore) of a copy of a computer program
which is an infringing copy shall, unless he proves that he acted
in good faith and had no reasonable grounds for supposing that copyright
would or might thereby be infringed, 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.
(2)
For the purposes of this section, a
transmission of a computer program that, when received and recorded,
will result in the creation of a copy of the computer program shall
be deemed to constitute the supply of a copy of the computer program at
the place where the copy will be created.
Court for trial of offences
140.
Notwithstanding
the provisions of any written law to the contrary, a District Court
or Magistrate"s Court shall have jurisdiction to try any
offence under this Act and award the full punishment for such offence.
Division 6 — Border
Enforcement Measures
Interpretation of this Division and Division 7
140A.
In
this Division and Division 7, unless the context otherwise requires —"aircraft"
has the same meaning as in the Regulation
of Imports and Exports Act (Cap. 272A);
"authorised
officer"
means —
(a)
an officer of customs as defined in
section 3 of the Customs Act (Cap. 70); or
(b)
any officer or class or description
of officers appointed by the Minister by notification in the Gazette to exercise the powers and perform the duties
conferred and imposed on an authorised officer by this Division and
Division 7;
"copyright
material"
means —
(a)
a work;
(b)
a sound recording;
(c)
a cinematograph film;
(d)
a published edition of a work; or
(e)
a television or a sound broadcast
as recorded in a cinematograph film or a sound recording;
"Director-General"
means the Director-General of Customs
appointed under section 4 (1) of the Customs Act;
"goods
in transit"
means goods imported,
whether or not landed or transhipped within Singapore, which are
to be carried to another country either by the same or another conveyance;
"master"
has the same meaning as in the Regulation
of Imports and Exports Act;
"objector"
, in relation to particular seized
copies, means the person who gave the notice under section 140B
(1) as a result of the giving of which the copies were seized;
"owner"
, in relation to the copyright in
copyright material, includes an exclusive licensee of the copyright
in the material;
"pilot
of an aircraft"
has the same
meaning as in the Regulation of Imports and Exports Act (Cap. 272A);
"seized
copies"
means copies seized under
section 140B (7);
"senior
authorised officer"
means —
(a)
a senior officer of customs as defined
in section 3 of the Customs Act (Cap. 70); and
(b)
any officer or class or description
of officers appointed by the Minister by notification in the Gazette to exercise the powers and perform the duties
conferred and imposed on a senior authorised officer by Division
7;
"vehicle"
has the same meaning as in the Regulation
of Imports and Exports Act;
"vessel"
has the same meaning as in the Regulation
of Imports and Exports Act.
[6/98]
Restriction of importation of copies of works, etc.
140B.
—(1)
A
person who is the owner of the copyright in any copyright material
or a licensee thereof may give the Director-General a written notice —(a)
stating that he is —(i)
the owner of the copyright in the
copyright material; or
(ii)
a licensee thereof having the power
to give such a notice;
(b)
stating that copies of the copyright
material which are infringing copies are expected to be imported;
(c)
providing sufficient information —(i)
to identify the copies of the copyright
material;
(ii)
to enable the Director-General to
ascertain the time when and place where the copies are expected
to be imported; and
(iii)
to satisfy the Director-General that
the copies are infringing copies; and
(d)
stating that he objects to such importation.
(2)
A notice given under subsection (1)
shall be supported by such documents and information as may be prescribed
in regulations.
[6/98]
(3)
Subject to subsection (4), this section
shall apply to copies of copyright material made wholly or partly
outside Singapore the making of which was carried out without the
consent of the owner of the copyright.
[6/98]
(4)
This section shall not apply to copies
of copyright material which are goods in transit.
[6/98]
(5)
Unless it is revoked under subsection
(6), a notice under subsection (1) shall remain in force until —(a)
the end of the period of 60 days commencing
on the day on which the notice was given; or
(b)
the end of the period for which the
copyright in the copyright material to which the notice relates
is to subsist,
whichever is the earlier.
[6/98]
(6)
A notice under subsection (1) may be
revoked by written notice given to the Director-General by the person
who gave the first-mentioned notice or by a subsequent owner of
the copyright in the copyright material to which the notice relates.
[6/98]
(7)
If —(a)
a notice has been given under this
section in respect of copyright material;
(b)
the notice has not lapsed or been
revoked; and
(c)
a person imports copies of the copyright
material to which this section applies for the purpose of —(i)
selling, letting for hire, or by way
of trade offering or exposing for sale or hire, the copies;
(ii)
distributing the copies for the purpose
of trade;
(iii)
distributing the copies for any other
purpose to an extent that will affect prejudicially the owner of
the copyright in the copyright material; or
(iv)
by way of trade exhibiting the copies
in public,
an authorised officer may seize the
copies.
[6/98]
(8)
The Minister may make regulations to
provide for —(a)
the forms of notices under this section;
(b)
the times at which, and the manner
in which, notices are to be given; and
(c)
the giving of information and evidence
to the Director-General.
[6/98]
Security for liability or expense of seizure
140C.
An
authorised officer may refuse to seize copies under section 140B
(7) unless —(a)
the objector has deposited with the
Director-General a sum of money that, in the opinion of the Director-General,
is sufficient to reimburse the Government for any liability or expense
it is likely to incur as a result of the seizure of the copies and
pay such compensation as may be ordered by the court under section
140I (7) or 140IA (2); or
(b)
the objector has given security, to
the satisfaction of the Director-General, for the reimbursement
of the Government for any such liability or expense.
[6/98;38/99]
Secure storage of seized copies
140D.
Seized
copies shall be taken to such secure place as the Director-General
directs.
[6/98]
Notice of seizure
140E.
—(1)
As
soon as is practicable after copies are seized under section 140B (7),
the Director-General shall give to the importer and the objector,
either personally or by post, a written notice identifying the copies
and stating that the identified copies have been seized.
[6/98]
(2)
A notice under subsection (1) shall
state that the copies will be released to the importer unless —(a)
an action for infringement of copyright
in respect of the copies is instituted by the objector within a
specified period from the day specified in the notice; and
(b)
the objector gives written notice
to the Director-General within that period stating that the action
for infringement of copyright has been instituted.
[6/98]
(3)
The period to be specified for the
purposes of paragraph (a) of subsection (2) is
the period prescribed for the purposes of that paragraph.
[6/98]
(4)
The day specified for the purposes
of subsection (2) (a) shall not be earlier than the
day on which the notice is given.
[6/98]
(5)
The objector may, by written notice
given to the Director-General before the end of the period specified
in a notice for the purposes of subsection (2) (a)
(the retention period), request that the period be extended.
[6/98]
(6)
Subject to subsection (7), if —(a)
a request is made in accordance with
subsection (5); and
(b)
the Director-General is satisfied
that it is reasonable that the request be granted,
the Director-General may extend the
retention period by such period as is prescribed.
[6/98]
(7)
A decision on a request made in accordance
with subsection (5) shall be made within 2 working days after the
request is made, but such a decision cannot be made after the end
of the retention period to which the request relates.
[6/98]
Inspection, release, etc., of seized copies
140F.
—(1)
The
Director-General may permit the objector or the importer to inspect
the seized copies.
[6/98]
(2)
If the objector gives the Director-General
the requisite undertakings, the Director-General may permit the
objector to remove one sample of the seized copies from the custody
of the Director-General for inspection by the objector.
[6/98]
(3)
If the importer gives the Director-General
the requisite undertakings, the Director-General may permit the
importer to remove one sample of the seized copies from the custody
of the Director-General for inspection by the importer.
[6/98]
(4)
The requisite undertakings are undertakings
in writing that the person giving the undertaking will —(a)
return the sample copy to the Director-General
at a specified time that is satisfactory to the Director-General;
and
(b)
take reasonable care to prevent damage
to the sample copy.
[6/98]
(5)
If the Director-General permits inspection
of the seized copies, or the removal of a sample copy, by the objector
in accordance with this section, the Director-General is not liable
to the importer for any loss or damage suffered by the importer
arising out of —(a)
damage to any of the seized copies
incurred during that inspection; or
(b)
anything done by the objector or any
other person to, or in relation to, a sample copy removed from the
custody of the Director-General or any use made by the objector
of such a sample copy.
[6/98]
Forfeiture of seized copies by consent
140G.
—(1)
Subject
to subsection (2), the importer may, by written notice to the Director-General,
consent to the seized copies being forfeited to the Government.
[6/98]
(2)
The notice shall be given before any
action for infringement of copyright in relation to the copies is
instituted.
[6/98]
(3)
If the importer gives such a notice,
the copies are forfeited to the Government and shall be disposed
of —(a)
in the manner prescribed by the regulations;
or
(b)
if no manner of disposal is so prescribed,
as the Director-General directs.
[6/98]
Compulsory release of seized copies to importer
140H.
—(1)
The
Director-General shall release seized copies (not being copies forfeited
to the Government under section 140G) to the importer on the expiration of
the retention period for the copies if the objector has not, before
the expiration of that period —(a)
instituted an action for infringement
of the relevant copyright in respect of the copies; and
(b)
given written notice to the Director-General
stating that the action has been instituted.
[6/98]
(2)
For the purpose of subsection (1),
the retention period for seized copies is —(a)
the period specified in a notice given
under section 140E in respect of the copies; or
(b)
if that period has been extended under
section 140E, that period as so extended.
[6/98]
(3)
If —(a)
an action for infringement of copyright
has been instituted in respect of seized copies; and
(b)
at the end of the period of 3 weeks
commencing on the day on which the action was instituted, there
is not in force an order of the court in which the action was instituted
preventing the release of the copies,
the Director-General shall release the
copies to the importer.
[6/98]
(4)
If the objector gives written notice
to the Director-General stating that he consents to the release
of the seized copies, the Director-General shall release the copies to
the importer.
[6/98]
(5)
This section shall have effect subject
to section 140J.
[6/98]
Provision relating to actions for infringement of
copyright
140I.
--(1)
In this section and section 140IA, "infringement action" means an
action for an infringement of copyright constituted by the importation
of seized copies.
[6/98;38/99]
(2)
The court in which an infringement
action is pending may, on the application of a person having a sufficient
interest in the subject-matter of the action, allow the person to
be joined as a defendant to the action.
[6/98]
(3)
An authorised officer is entitled to
be heard on the hearing of an infringement action.
[6/98]
(4)
In addition to any relief that may
be granted apart from this section, the court may —(a)
at any time, order that the seized
copies be released to the importer subject to such conditions, if
any, as the court thinks fit;
(b)
order that the seized copies not be
released to the importer before the end of a specified period; or
(c)
order that the goods be forfeited
to the Government.
[6/98]
(5)
A court may not make an order under
subsection (4) (a) if it is satisfied that the Government
or any statutory authority is required or permitted under any other
law to retain control of the seized copies.
[6/98]
(6)
The Director-General shall comply with
an order made under subsection (4).
[6/98]
(7)
If —(a)
the action is dismissed or discontinued,
or the court decides that the relevant copyright was not infringed
by the importation of the seized copies; and
(b)
a defendant to the infringement action
satisfies the court that he has suffered loss or damage as a result
of the seizure of the copies,
the court may order the objector to
pay compensation in such amount as the court thinks fit to that
defendant.
[6/98;38/99]
Compensation for failure to take action
140IA.
—(1)
Where
copies have been seized pursuant to a notice given under section
140B and the objector concerned fails to take infringement action
within the retention period for the copies, a person aggrieved by
such seizure may apply to the court for an order of compensation
against the objector.
[38/99]
(2)
Where the court is satisfied that the
applicant had suffered loss or damage as a result of the seizure
of the copies, the court may order the objector to pay compensation
in such amount as the court thinks fit to the applicant.
[38/99]
(3)
For the purposes of subsection (1),
the retention period for seized copies is —(a)
the period specified in a notice given
under section 140E in respect of the copies; and
(b)
if that period has been extended under
section 140E, that period as so extended.
[38/99]
Retention of control of seized copies
140J.
Notwithstanding
section 140H, in a case in which no order has been made under section
140I (4) in relation to seized copies, the Director-General is not obliged
to release or dispose of the copies if the Government is required
or permitted, under any other law, to retain control of the copies.
[6/98]
Disposal of seized copies ordered to be forfeited
140K.
If
a court orders that seized copies are to be forfeited to the Government,
the copies shall be disposed of —(a)
in the manner prescribed by the regulations;
or
(b)
if no manner of disposal is so prescribed,
as the Director-General directs.
[6/98]
Insufficient security
140L.
—(1)
If
the reasonable expenses incurred by the Director-General in relation to
any action taken by the Director-General under this Division, or
taken in accordance with an order of a court under this Division
exceed the amount deposited, or the amount of the security given,
under section 140C, the amount of the excess is a debt due to the
Government.
[6/98]
(2)
The debt created by subsection (1)
is due by the objector, or, if there are 2 or more objectors, by
the objectors jointly and severally.
[6/98]
Detention of infringing
copies
140LA.
—(1)
Notwithstanding
section 140B (4), any authorised officer may —(a)
detain any copies of copyright material —(i)
that are imported into, or that are
to be exported from, Singapore; and
(ii)
that are not goods in transit, unless
the copies are consigned to any person with a commercial or physical
presence in Singapore; or
(b)
examine any copies of copyright material,
including goods in transit,
which he reasonably suspects are infringing
copies of any copyright material.
(2)
As soon as practicable
after the copies of copyright material are detained under subsection
(1) (a), the Director-General shall give —(a)
to the importer, exporter or consignee,
as the case may be, of the detained copies; and
(b)
to the owner of the copyright in
the copyright material,
a written notice identifying the copies,
stating that they have been detained and setting out the matters
referred to in subsection (3).
(3)
The detained copies
of copyright material shall be released to the importer, exporter
or consignee, as the case may be, of the copies, unless, within
the prescribed period, the owner of the copyright in the copyright
material —(a)
in the case of copies that are imported
into Singapore and that are not goods in transit —(i)
gives the Director-General the written
notice referred to in section 140B (1);
(ii)
submits to the Director-General the
documents and information referred to in section 140B (2); and
(iii)
deposits with the Director-General
the sum of money referred to in section 140C (a)
or gives the security referred to in section 140C (b); or
(b)
in the case of copies that are to
be exported from Singapore or copies that are goods in transit and
consigned to a person with a commercial or physical presence in
Singapore —(i)
institutes an action for the infringement
of his copyright;
(ii)
serves on the Director-General an
order of the court authorising the further detention of the copies;
and
(iii)
deposits with the Director-General
a sum of money that, in the opinion of the Director-General, is
sufficient to —(A)
reimburse the Government for any
liability or expense it has and is likely to further incur as a
result of the detention of the copies; and
(B)
pay such compensation to any person
who suffers loss or damage as a result of the detention of the copies
as may be ordered by the court,
or gives security, to the satisfaction
of the Director-General, for the reimbursement of the Government
for any such liability or expense and the payment of such compensation.
(4)
Every order of
the court authorising the further detention of copies under subsection
(3) (b) (ii) shall be subject to the condition
that the owner of the copyright in the copyright material complies
with subsection (3) (b) (iii) within the period
prescribed under subsection (3).
(5)
Where the court
has made an order authorising the further detention of copies under
subsection (3) (b) (ii) —(a)
the detained copies shall be taken
to such secure place as the Director-General directs; and
(b)
sections 140F and 140G and 140I to
140L shall apply, with the necessary modifications, to the further
detention of the copies, and for the purposes of such application —(i)
any reference to the objector shall
be read as a reference to the owner of the copyright in the copyright
material;
(ii)
any reference to the importer shall
be read as a reference to the exporter or consignee, as the case
may be, of the detained copies;
(iii)
any reference to the seized copies
shall be read as a reference to the detained copies;
(iv)
any reference to the seizure of copies
shall be read as a reference to the detention or further detention
of the copies;
(v)
any reference to the import or importation
of copies shall be read —(A)
in the case of copies that are to
be exported from Singapore, as a reference to the export of the
copies; or
(B)
in the case of copies that are goods
in transit and that are consigned to a person with a presence in
Singapore, as a reference to the import, importation or export,
of the copies by the consignee;
(vi)
any reference to infringement action
shall be read as a reference to an action for the infringement of
the copyright in the copyright material under subsection (3) (b) (i); and
(vii)
any reference to the retention period
shall be read as a reference to the prescribed period under subsection
(3).
Division 7 — Powers
of Search
Powers of search in relation to vessels, aircrafts
and vehicles
140M.
—(1)
A
senior authorised officer or an authorised officer acting in accordance
with the general or special directions of a senior authorised officer
may board any conveyance in Singapore and may rummage and search
all parts of the conveyance for copies of copyright material liable
to be seized under section 140B (7) or detained
under section 140LA.
[6/98]
(2)
For the more effective exercise of
the powers conferred by this section, a senior authorised officer
may do all or any of the following:(a)
require the master of any vessel in
Singapore to heave to;
(b)
by direction to the master of any
vessel or the pilot of any aircraft in Singapore, require the vessel
or aircraft, as the case may be, not to proceed until so authorised;
(c)
require any documents which ought
to be on board any vessel or aircraft, being documents relating
to any goods therein, to be brought to him for inspection;
(d)
break open and forcibly enter any
place or receptacle in any conveyance to which he cannot otherwise
reasonably obtain access;
(e)
by direction to the master of any
vessel in Singapore, require the vessel to proceed to any specified
anchorage, wharf or place to which the vessel may lawfully go;
(f)
by direction to the master of any
vessel in Singapore, require him to move or discharge any cargo
or other goods therein;
(g)
require the person in charge of a
vehicle —(i)
to stop and not to proceed until so
authorised; or
(ii)
to bring the vehicle to any police
station or examination station;
(h)
direct that the removal of any goods
from or placed in any vessel be prohibited until so authorised;
(i)
require the master of any vessel or
the pilot of any aircraft to produce a complete manifest of the
whole cargo of the vessel or aircraft and a complete list of stores
carried by that vessel or aircraft.
[6/98]
(3)
An authorised officer may exercise,
in respect of any vehicle or any vessel not exceeding 75 tons net
tonnage, the powers which are conferred upon a senior authorised
officer by subsection (2) other than the powers conferred by paragraph
(d) of that subsection.
[6/98]
(4)
It shall be presumed in any proceedings
arising out of any thing done under this section, unless the contrary
is proved, that any authorised officer, not being a senior authorised
officer, by whom the thing was done was acting in accordance with
the general or special direction of a senior authorised officer.
[6/98]
(5)
If any vessel or aircraft fails to
comply with any lawful requisition or direction given or made under
this section, a senior authorised officer may take all such steps as
appear to him necessary to secure such compliance.
[6/98]
(6)
Any person who contravenes this section
or who fails to comply with any lawful requisition or direction
given or made thereunder shall be guilty of an offence and shall
be liable on conviction to a fine not exceeding $6,000
or to imprisonment for a term not exceeding 12 months or to both.
[6/98]
(7)
An authorised officer may exercise
the powers conferred by this section in respect of a vessel under
way if he reasonably suspects that it is not in transit through Singapore.
[6/98]
Examination of packages
140N.
—(1)
Any
goods, package, box, chest or other article which is being or has recently
been imported and in regard to which a reasonable suspicion exists
that it is or that it contains a copy of copyright material liable
to be seized under section 140B (7) or detained
under section 140LA may be —(a)
examined and searched by an authorised
officer or detained until any person in charge thereof has opened
it for examination and search;
(b)
subjected to such tests or analysis
as the authorised officer thinks fit;
(c)
forcibly opened by, or by order of,
a senior authorised officer to facilitate the examination and search
except that any person in charge of the package, box, chest or other
article shall be afforded every reasonable facility for being present
at the opening, examination and search; or
(d)
marked, locked, sealed or otherwise
secured by an authorised officer pending examination and search.
[6/98]
(2)
Any person, other than an authorised
officer, who removes, opens, breaks or tampers with any mark, lock,
seal or other means of securing any goods, package, box, chest or
other article referred to in subsection (1) (d)
shall be guilty of an offence and shall be liable on conviction
to a fine not exceeding $6,000 or to imprisonment for a
term not exceeding 6 months or to both.
[6/98]
Power to remove packages and goods to police station
or examination station
140O.
—(1)
For
the more convenient exercise of the powers conferred by section 140N,
an authorised officer may remove any package, box, chest or other
article or any goods to a police station or examination station
or may require it to be so removed by the owner thereof or his agent
or any person having the custody, charge or control thereof.
[6/98]
(2)
Any person who fails to comply with
any such requisition shall be guilty of an offence and shall be
liable on conviction to a fine not exceeding $6,000.
[6/98]
(3)
Upon the failure by a person to comply
with such a requisition, an authorised officer may remove the goods
in the manner provided by subsection (1) and all the expenses of
such removal (as certified by a senior authorised officer) shall
be recoverable as a fine from that person or from the owner of the
goods.
[6/98]
Search of persons and baggage
140P.
—(1)
Any
person landing or being about to land or having recently landed from
any vessel or aircraft, or leaving any vessel or aircraft in Singapore
whether for the purpose of landing or otherwise, or entering or
having recently entered Singapore by land, sea or air, shall —(a)
on
demand by an authorised officer, either permit his person and goods and
baggage to be searched by the officer for any copy of copyright
material liable to be seized under section 140B (7) or
detained under section 140LA or, together with the goods and
baggage, accompany the officer to a police station or an examination
station, and there permit his person and goods and baggage to be
searched in the presence and under the supervision of a senior authorised
officer for any copy of copyright material liable to be seized under
section 140B (7) or detained under section 140LA;
or
(b)
on
demand by a senior authorised officer, permit his person and goods
and baggage to be searched by the officer, or in the presence and
under the supervision of the officer, for any copy of copyright
material liable to be seized under section 140B (7) or
detained under section 140LA.
[6/98]
(2)
Whenever it is necessary to cause a
woman to be searched, the search shall be made by another woman
and with strict regard to decency.
[6/98]
(3)
The goods and baggage of any person
who requests to be present when they are searched shall not be searched
except in his presence, unless he fails to be present after being
given reasonable facility for being present.
[6/98]
(4)
Any person who refuses to comply with
any lawful demand made under this section may be arrested without
warrant by the authorised officer making the demand.
[6/98]
Powers of authorised officers to enter certain premises
140Q.
—(1)
For
the purpose of exercising the powers conferred by sections 140M to
140P, an authorised officer may, without warrant, enter upon any
islet, landing place, wharf, dock, railway or quay or the premises
of a provider of port services or facilities licensed or exempted
under the Maritime and Port Authority of Singapore Act (Cap. 170A),
or of the Civil Aviation Authority of Singapore.
[6/98]
(2)
In this section, “railway” has
the same meaning as in the Railways Act (Cap. 263).
[6/98]
Obstruction
141.
Any
person who —(a)
refuses any authorised officer or
senior authorised officer access to any vessel, aircraft, vehicle
or place which the officer is entitled under this Division; or
(b)
obstructs or hinders any authorised
officer or senior authorised officer in the execution of any power
conferred upon that officer by this Division,
shall be guilty of an offence and shall
be liable on conviction to a fine not exceeding $15,000
or to imprisonment for a term not exceeding 12 months or to both.
[141R
[6/98]
Division 8 — Miscellaneous
Limitation of actions in respect of infringement
of copyright
142.
An
action shall not be brought for an infringement of copyright, after
the expiration of 6 years from the time when the infringement took
place.
[141