Copyright Fair Use in the Face of Technological Developments: Staying Ahead or Limping Behind? (Part 1)

Introduction

Open-ended fair use and categorical fair dealing provisions both temper the exclusive rights of copyright owners to foster further creative expression by permitting secondary uses of copyrighted works, providing the primary mechanism to balance copyright protection with the broader public interest of fostering creative expression.¹See, eg, Campbell v Acuff-Rose Music, Inc 510 US 569 at 579 (1994). A number of jurisdictions also provide definitional statutory exceptions that do not require a balancing of factors, that is, it is a permitted use of copyrighted works for specific purposes so long as particular conditions are satisfied; the text and datamining (TDM) exception – called the computational data analysis exception in Singapore – is one such example. Today, the breathtaking pace of technological developments has perhaps left copyright law struggling to keep up, as traditional understandings of various copyright doctrines and legislative mechanisms are generally unable to match this speed. In the article in the Harvard Law Bulletin, it was commented that “[w]hile embracing technological change is part of the human experience, when the pace of that change seems to ramp up exponentially, the rules and regulations meant to keep that technology in check can fall further and further behind.”²Colleen Walsh, “How to think about AI: Delving into the legal and ethical challenges of a game-changing technology”, Harvard Law Bulletin, Summer 2023, 21 at 22. This two-part article discusses the fair use doctrine in Singapore in relation to internet search engines and the use of works for training generative artificial intelligence applications (GAIAs) (e.g. ChatGPT, Midjourney, Stable Diffusion).

Fair Use Codified in Copyright Act 2021

The open-ended fair use provision in the US³Copyright Act 17 USC (US) § 107 (1976). operates as a general exception that courts apply on a case-by-case basis; this is explicitly adopted in Singapore in section 191 of the Copyright Act 2021 which enumerates a non-exclusive list of four factors to be weighed to determine whether an unauthorised use is fair, and hence a permitted use.⁴It replaces the previous open-ended fair dealing in s 35(2) of the Copyright Act (Cap 63, 2006 Rev Ed). Section 191 of the Copyright Act 2021(2020 Rev Ed) provides:Subject to sections 192, 193 and 194, all relevant matters must be considered in deciding whether a work or a protected performance (including a recording of the performance) is fairly used, including —(a) the purpose and character of the use, including whether the use is of a commercial nature or is for non‑profit educational purposes;(b) the nature of the work or performance;(c) the amount and substantiality of the portion used in relation to the whole work or performance; and(d) the effect of the use upon the potential market for, or value of, the work or performance. It seems from the announcements by the Government that by renaming the open-ended fair dealing provision as “fair use”,⁵Ministry of Law & Intellectual Property Office of Singapore, Singapore Copyright Review Report (17 January 2019) at para 2.6.8 and Conclusion 6(b). Singapore’s copyright law is poised to be more future ready and able to better tackle how the copyright balance should be struck between authors/owners and the users/public.

The rapid technological developments pose a number of challenges for fair use in Singapore. First, the kaleidoscope of infringing activities made possible by technology makes it difficult to articulate ex ante clear rules as new generative artificial intelligence (AI) uses and capabilities, search engines, social media apps, time-shifting/format-shifting capabilities and prevalent online community behaviour often present novel scenarios for the application of copyright law. Second, these activities also severely test the multi-factor-inquiry of an open-ended fair use approach by requiring courts to make critical policy choices involving technological innovations such as determining the degree of public benefit in a secondary use and how likely it would supplant the commercial market for the original or its derivatives.⁶For example, Google LLC v Oracle America, Inc, 141 S Ct 1183 at 1207 (2021); Capitol Records, LLC v ReDigi Inc, 910 F.3d 649 at 662 (2nd Cir. 2018); Fox News Network, LLC v TVEyes, Inc, 883 F.3d 169 at 179 (2nd Cir. 2018) and Authors Guild v Google, Inc, 804 F.3d 202 at 223 (2nd Cir. 2015). Third, to what extent should US jurisprudence on technology-related fair use decisions influence the deliberations in Singapore?

Singapore Case Law on Fair Use

The Court of Appeal in Global Yellow Pages Ltd v Promedia Directories Pte Ltd⁷(2017) 2 SLR 185. concluded that the defendant’s scanning and photocopying of the Business Listings was fair dealing, and the court also provided significant guidance on the application of the fair dealing provision under section 35(2) of the Copyright Act.⁸Cap 63, 2006 Rev Ed. Sundaresh Menon CJ hinted at the willingness of the local courts to take greater cognisance of US and Australian decisions in this area:⁹Global Yellow Pages Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (76). Section 35(2) of the old Copyright Act (Cap 63, 2006 Rev Ed) is the precursor of the new open-ended fair use provision in ss 190–191 of the Copyright Act 2021 (2020 Rev Ed).

Accordingly, although there are very few reported local cases that consider in detail the scope of and relationship between the factors in s 35(2), both American and Anglo-Australian jurisprudence will be helpful in shaping our law on fair dealing.

In respect of the first factor, the purpose and character of the dealing, it favoured fair dealing where “the defendant added to, recontextualised or transformed the parts taken”¹⁰Global Yellow Pages Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (79). or where the new work was “transformative”, that is, whether it “supersede[s] the objects” of the original creation, or “adds something new, with a further purpose or different character”.¹¹Global Yellow Pages Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (79) (referring to Campbell v Acuff-Rose Music, Inc, 510 US 569 at 579 (1994)). It appears that the Court of Appeal is edging towards the view of the US Supreme Court in Campbell v Acuff-Rose Music, Inc¹²510 US 569 at 579 (1994). (Campbell) when Menon CJ remarked that “we do not go as far as those cases which suggest that a commercial nature or purpose of the dealing will presumptively be regarded as unfair” and “the commerciality of the dealing is but one of the factors to be considered and it will not necessarily be fatal to a finding of fair dealing”.¹³Global Yellow Pages Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (81). In fact, the court considered the application of the transformative use doctrine in Campbell (where the commerciality of the rap song “Pretty Woman” was trumped by the transformative value of the parody) and in Authors Guild v Google, Inc¹⁴Authors Guild v Google, Inc, 804 F 3d 202 (2nd Cir. 2015). (where Google’s making of digital copies of books for the purpose of enabling a search for identification of books containing a term of interest to the searcher involved a highly transformative purpose).

With respect to the first factor of fair use, the US statute requires courts to examine the “purpose and character of the use”, but neither “purpose” nor “character” is defined in the statute. Section 191 of the Singapore Copyright Act 2021 contains similar words, with the first factor being stated as “the purpose and character of the use, including whether the use is of a commercial nature or is for non‑profit educational purposes”. While there has been no local case law applying section 191, it is highly likely that courts here will look to how the US courts consider a number of relevant elements like what kind of transformation is present in the secondary work, the track record of the author of the secondary work, the extent of commentary or criticism present in the secondary work, the significance of the secondary use to research or study, as well as its public benefit.¹⁵David Tan, “The Lost Language of the First Amendment in Copyright Fair Use: A Semiotic Perspective of the ‘Transformative Use’ Doctrine Twenty-Five Years On” (2016) 26 Fordham Intellectual Property, Media and Entertainment Law Journal 311 at 325.

In response to the Campbell decision, Pierre Leval hailed Justice Souter’s opinion as “the finest opinion ever written on the subject of fair use”.¹⁶Pierre N Leval, “Nimmer Lecture: Fair Use Rescued” (1997) 44 UCLA Law Review 1449 at 1464. However, sitting as a judge in the Second Circuit Court of Appeals, he was recently more critical of the privileged position of the transformative use doctrine in copyright fair use, commenting that the fourth factor is “undoubtedly the single most important element of fair use”.¹⁷Capitol Records, LLC v ReDigi, Inc, 910 F 3d 649 at 662 (2nd Cir. 2018). In light of the US Supreme Court’s decision in Google LLC v Oracle America, Inc¹⁸141 S Ct 1183 (2021). handed down in April 2021, the transformative use doctrine seems to have taken a backseat to the fourth factor which evaluates market impact.¹⁹Google LLC v Oracle America, Inc, 141 S Ct 1183 (2021). The importance of economic impact on the licensing market of the original work was also emphasised by the majority in a later decision: Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith, 598 US 508 (2023). Justice Breyer, delivering the majority’s opinion, held that: “in determining whether a use is ‘transformative,’ we must go further and examine the copying’s more specifically described ‘purpose[s]’ and ‘character’”.²⁰Google LLC v Oracle America, Inc, 141 S Ct 1183 at 1203 (2021). Furthermore, the court would “take into account the public benefits the copying will likely produce”.²¹Ibid at 1206. In Campbell, the court explained that “a use that has a distinct purpose is justified because it furthers the goal of copyright, namely, to promote the progress of science and the arts, without diminishing the incentive to create.”²²Campbell v Acuff-Rose Music, Inc, 510 US 569 at 531 (1994) (emphasis added). This was most recently reiterated in Keck v Mix Creative Learning Center LLC, 116 F.4th 448 at 454 (5th Cir. 2024). See also Hachette Book Group, Inc v Internet Archive, 115 F.4th 163 at 181 (2nd Cir. 2024). The need to discern a distinct purpose from the original was also emphasised in the majority judgment of the Supreme Court in 2023 in Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith.²³Andy Warhol Foundation for the Visual Arts, Inc v Goldsmith, 598 US 508 at 527–529 and 531–532 (2023).

On the fourth factor, the effect of the use on the potential market for the value of the copyrighted work, Menon CJ, referring to Campbell, was of the view that it requires the court to consider “not only the extent of market harm caused by” the alleged infringer’s action, but also whether the defendant’s conduct, if “unrestricted and widespread”, would “result in a substantially adverse impact on the potential market” for the original and derivative works.²⁴Global Yellow Pages Ltd v Promedia Directories Pte Ltd (2017) 2 SLR 185 at (82) (citing Campbell v Acuff-Rose Music, Inc, 510 US 569 at 590 (1994)). The interplay between the fourth factor and the first factor is a controversial one, depending on one’s definition of a transformative market, a point which the court did not address. It has been observed that the “commerciality” of the secondary work (a consideration under the first factor of fair use) is a different analysis from the effect of the secondary use upon the potential commercial market for, or value of, the copyrighted work or its adaptations (a consideration under the fourth factor of fair use).²⁵David Tan, “The Transformative Use Doctrine and Fair Dealing in Singapore: Understanding the ‘Purpose and Character’ of Appropriation Art” (2012) 24 SAcLJ 832 at para 47.

Part 2 will discuss the application of fair use to two specific technological uses.

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