PART 5 REMEDIES FOR AND
BORDER ENFORCEMENT MEASURES
AGAINST RIGHTS INFRINGEMENTS |
| Division 1 — Remedies against network service providers |
| Definitions of this Division |
73. In this Division —| “designated representative”, in relation to a NSP, means the designated representative of the NSP whose name is published under regulation 76(2); |
| “electronic copy”, “NCP”, “NSP”, “primary network”, and “rights owner” have the meanings given by section 313. |
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Subdivision (1) — Restriction of remedies
against rights infringements in
course of providing network services |
| General conditions relating to restriction of remedies |
74.—(1) For the purposes of sections 316(2)(e), 317(2)(c), 318(2)(d) and 319(2)(d), a NCP or NSP (as the case may be) must comply with the conditions prescribed in this regulation.| (2) The NCP or NSP must adopt and reasonably implement a policy that provides for the termination, in appropriate circumstances, of the accounts of users of the NCP’s or NSP’s primary network or services who repeatedly commit rights infringements. |
(3) The NCP or NSP must accommodate and not interfere with any standard technical measures accepted in Singapore that —| (a) | are used to identify or protect electronic copies; | | (b) | are developed through an open, voluntary process by a broad consensus of rights owners, and NCPs or NSPs; | | (c) | are available to any person on reasonable and non‑discriminatory terms; and | | (d) | do not impose substantial costs on NCPs or NSPs or substantial burdens on their primary networks. |
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| Further conditions relating to infringement by system caching |
75.—(1) For the purposes of section 317(2)(c), a NSP must comply with the conditions prescribed in this regulation (in addition to the conditions in regulation 74).(2) If —| (a) | the original copy has been made available online by a person other than the NSP; and | | (b) | the person requires other persons to meet certain conditions to have access to the original copy (such as paying a fee or providing a password), |
| the NSP must permit access to the cached copy on its primary network in significant part — |
| (c) | only to users of the primary network or another network who have met those conditions; and | | (d) | only in accordance with those conditions. |
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(3) The NSP must comply with rules specified by the person who made the original copy available online, but only if those rules —| (a) | concern the refreshing, reloading or other updating of the cached copy; | | (b) | are consistent with any generally accepted industry standard data communications protocol for the network through which that person makes the original copy available; and | | (c) | are not used by that person to unreasonably impair the intermediate storage of the cached copy. |
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(4) The NSP must not interfere with the operation of any technology used at the originating network mentioned in section 317(1)(b) to obtain information about the use of any material made available on that network, but only if that technology —| (a) | does not significantly interfere with the performance of the NSP’s primary network or the intermediate storage of the cached material; and | | (b) | is consistent with any relevant industry standards in Singapore. |
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| (5) In this regulation, “original copy”, in relation to a cached copy, means the electronic copy mentioned in section 317(1)(b). |
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| Information on designated representative for receiving take‑down notices |
76.—(1) This regulation applies in relation to the designation of a representative by a NSP to receive take‑down notices under section 318(2)(c) or 319(2)(c).(2) The NSP must publish all the following information about the designated representative:| (a) | the name of the designated representative; | | (b) | the designated representative’s appointment in the NSP; | | (c) | the address in Singapore, fax number (if any) and email address of the designated representative for the service of documents for the purposes of this Division; | | (d) | a telephone number at which the designated representative may be contacted. |
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(3) The NSP must publish the information by —| (a) | placing the information on its Internet website, which must be accessible to the public; and | | (b) | providing the information to IPOS in the form and manner specified by IPOS. |
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| (4) IPOS must maintain a directory of designated representatives on an Internet website that is accessible to the public. |
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| Evidence of compliance with certain conditions |
77.—(1) This regulation prescribes the evidence that a NCP or NSP may produce for the purposes of section 321.(2) A NCP or NSP (as the case may be) may, in relation to a condition mentioned in section 316(2)(a), (b), (c) or (d) or 317(2)(a) or (c), produce evidence of —| (a) | its documented policies or documented standard operating procedures; and | | (b) | statements contained in those policies or procedures that suggest that it has complied with the condition. |
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(3) A NCP or NSP (as the case may be) may, in relation to a condition mentioned in regulation 74, produce evidence of —| (a) | its documented terms and conditions for the usage of its primary network or services; and | | (b) | statements contained in those terms and conditions that suggest that it has complied with the condition. |
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| Requirements relating to take‑down notices |
78.—(1) This section prescribes, under section 323, requirements in relation to a take‑down notice under section 317(2)(b), 318(2)(b)(iii) or 319(2)(b)(iii).(2) A take‑down notice must be served on the NSP, and for this purpose —| (a) | the address, fax number (if any) and email address published under regulation 76(2) may be used for service on the NSP in accordance with regulation 3; and | | (b) | the NSP is deemed to have given prior consent for service by email at the email address published under regulation 76(2). |
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(3) A take‑down notice must be —| (a) | in or substantially in the specified form; and | | (b) | signed by the complainant. |
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(4) A take‑down notice must state all the following matters:| (a) | the name and address of —| (i) | the complainant; and | | (ii) | the rights owner of the relevant work or performance (if the rights owner is not the complainant); |
| | (b) | if the complainant is not resident in Singapore — the complainant’s address for service in Singapore; | | (c) | a telephone number, a fax number (if any) and an email address at which the complainant can be contacted; | | (d) | sufficient particulars to enable the NSP to —| (i) | identify the relevant work or performance; | | (ii) | identify and locate the alleged infringing copy (being an electronic copy) of the relevant work or performance, including the online location of that copy; and | | (iii) | if the take‑down notice is given under section 319(2)(b)(iii) (locating information) — identify and locate the means by which the NSP is alleged to have referred or linked a user of any network to the online location of the alleged infringing copy; |
| | (e) | where the alleged infringing copy is on the NSP’s primary network — a statement that the complainant requires the NSP to remove or disable access to the alleged infringing copy; | | (f) | where the alleged infringing copy is on a network other than the NSP’s primary network — a statement that the complainant requires the NSP to disable access to that alleged infringing copy; | | (g) | a statement that the complainant, in good faith, believes that the alleged infringing copy is in fact an infringing copy of the relevant work or performance; | | (h) | if the take‑down notice is given under section 317(2)(b) (system caching) — a statement —| (i) | that the alleged infringing copy is a cached copy of an electronic copy of the relevant work or performance that was made available on a network; and | | (ii) | that —| (A) | the latter copy has been removed from that network or access to the latter copy on that network has been disabled; or | | (B) | a court has ordered that the latter copy be removed from that network or that access to the latter copy on that network be disabled; |
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| | (i) | a statement that the information in the notice is accurate; | | (j) | a statement that the complainant —| (i) | is the rights owner of the relevant work or performance; or | | (ii) | is authorised to act on behalf of the rights owner of the relevant work or performance; |
| | (k) | a statement that the complainant submits to the jurisdiction of the courts of Singapore for the purposes of any proceedings relating to any liability under section 324(2)(b). |
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| (5) In this regulation, “complainant” means a person giving a take‑down notice. |
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| Time for serving restoration notice |
79.—(1) This regulation prescribes the time within which a restoration notice must be served for the purposes of section 322(3)(c) and (4)(c)(i).| (2) A restoration notice must be served on the NSP concerned within 6 weeks after the day on which the NSP notifies Y under section 322(3)(b)(i) or (4)(b). |
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| Requirements relating to restoration notices |
80.—(1) This section prescribes, under section 323, requirements in relation to a restoration notice under section 322(3)(c) and (4)(c)(i).(2) A restoration notice must be served on a NSP, and for this purpose —| (a) | the address, fax number (if any) and email address published under regulation 76(2) may be used for service on the NSP in accordance with regulation 3; and | | (b) | the NSP is deemed to have given prior consent for service by email at the email address published under regulation 76(2). |
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(3) A restoration notice must be —| (a) | in or substantially in the specified form; and | | (b) | signed by the respondent. |
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(4) A restoration notice must state all the following matters:| (a) | the name and address of the respondent; | | (b) | if the respondent is not resident in Singapore — the respondent’s address for service in Singapore; | | (c) | a telephone number, a fax number (if any) and an email address at which the respondent can be contacted; | | (d) | sufficient particulars to enable the NSP to identify the electronic copy that has been removed or to which access has been disabled; | | (e) | the online location of that electronic copy before it was removed or access to it was disabled; | | (f) | a statement that the respondent, in good faith, believes —| (i) | that the electronic copy mentioned in sub‑paragraph (d) was removed, or access to that electronic copy was disabled, as a result of mistake or misidentification; or | | (ii) | that the electronic copy mentioned in sub‑paragraph (d) is not an infringing copy of any work or performance; |
| | (g) | a statement that the respondent submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to the electronic copy mentioned in sub‑paragraph (d); | | (h) | a statement that the information in the notice is accurate; | | (i) | a statement that the respondent submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to any liability under section 324(2)(b). |
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| (5) In this regulation, “respondent” means the person giving a restoration notice. |
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Subdivision (2) — Disabling access to
flagrantly infringing online locations |
| Procedure for application for access disabling order |
81.—(1) This regulation prescribes matters in relation to section 326.| (2) For the purposes of section 326(2)(a)(ii), the prescribed time is a period of 14 days after the date of the take‑down notice. |
| (3) A take‑down notice and a notice of application must be in or substantially in the specified forms. |
(4) The following matters must be considered, and appropriate weight must be given to them, in deciding whether a rights owner has made reasonable efforts to give notice for the purposes of section 326(5)(b):| (a) | whether the rights owner searched for the identity or address of the owner of the online location from the online location, publicly available domain registry and social media; | | (b) | if the identity or address was or could have been found — whether the rights owner sent the take‑down notice and notice of application to the owner of the online location using an appropriate method of communication (such as mail, email or social media); | | (c) | whether the rights owner used any contact form found on the online location to convey the take‑down notice and notice of application to the owner of the online location; | | (d) | whether the rights owner asked the Internet web host of the online location or the registrar or registry of the online location’s domain name —| (i) | to search for the contact details of the owner of the online location and, where the contact details were or could have been obtained, to send the take‑down notice and notice of application to the owner using an appropriate method of communication (such as mail, email or social media); or | | (ii) | to ask the web host or domain name registrar of the online location to forward the take‑down notice and notice of application to the owner of the online location; |
| | (e) | whether the rights owner checked with the site administrator, forum moderator or other possible points of contact on the online location for the contact details of the owner of the online location; | | (f) | any other relevant matter. |
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(5) In this regulation —| “notice of application” means a notice given under section 326(2)(b); |
| “take‑down notice” means a notice given under section 326(2)(a). |
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Division 2 — Border enforcement measures
against infringing goods |
| Request to seize — prescribed requirements, etc. |
82.—(1) This section prescribes matters in relation to a request to seize goods under section 332.| (2) A request may be made by the agent of a person. |
(3) For the purposes of section 332(2)(a), a request must be served on the Director‑General by delivering it to the Singapore Customs —| (a) | during the business hours of the office of the Singapore Customs; and | | (b) | at a time which gives a customs officer reasonable time to act on the request. |
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(4) For the purposes of section 332(2)(f) —| (a) | a request must be accompanied by a statutory declaration that the particulars stated in the request are true; | | (b) | a requestor who is acting as an agent must give evidence of the authority given to the requestor; and | | (c) | if the Director‑General so requires, a requestor must provide information or evidence to establish —| (i) | that the relevant work or performance is a copyright work or protected performance; | | (ii) | the identity of the rights owner; and | | (iii) | that the goods to be seized are infringing goods within the meaning of section 330, |
| and the information or evidence must be given in the required form and within the required time. |
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| (5) For the purposes of section 332(2)(g), a request must be accompanied by the relevant fee prescribed by the Copyright (Border Enforcement Measures Fees) Regulations 2021 (G.N. No. S 881/2021). |
(6) If there is any change that affects the particulars stated in the request, the requestor must, within 7 days after the change —| (a) | inform the Director‑General in writing; and | | (b) | provide any document or information in relation to the change that the Director‑General may reasonably require. |
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| Notice to bring action after seizure — prescribed time for bringing action |
| 83. For the purposes of section 335(2)(d)(i), an infringement action must be brought in relation to seized goods within 10 working days after the date specified in the notice given under section 335(1). |
| Request to continue detention — prescribed requirements, etc. |
84.—(1) This section prescribes matters in relation to a request to continue detention under section 338.| (2) A request may be made by the agent of a person. |
| (3) For the purposes of section 338(2)(a), a request must be made within 48 hours after the date of the notice of seizure in section 337. |
| (4) For the purposes of section 338(2)(b), a request must be served on the Director‑General by delivering it to the Singapore Customs during the business hours of the office of the Singapore Customs. |
(5) For the purposes of section 338(2)(e) —| (a) | a request must be accompanied by a statutory declaration that the particulars stated in the request are true; | | (b) | a requestor who is acting as an agent must give evidence of the authority given to the requestor; and | | (c) | if the Director‑General so requires, a requestor must provide information or evidence to establish —| (i) | that the relevant work or performance is a copyright work or protected performance; | | (ii) | the identity of the rights owner; and | | (iii) | that the seized goods are infringing goods within the meaning of section 330, |
| and the information or evidence must be given in the required form and within the required time. |
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| (6) For the purposes of section 338(2)(f), a request must be accompanied by the relevant fee prescribed by the Copyright (Border Enforcement Measures Fees) Regulations 2021. |
(7) If there is any change that affects the particulars stated in the request, the requestor must, within 7 days after the change —| (a) | inform the Director‑General in writing; and | | (b) | provide any document or information in relation to the change that the Director‑General may reasonably require. |
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| Notice to bring action after seizure — prescribed time for bringing action |
| 85. For the purposes of section 340(2)(a), an infringement action must be brought in relation to seized goods within 10 working days after the date specified in the notice given under section 340(1). |
| Extension of time for requestor to bring action |
| 86. For the purposes of section 342(3), an extension of time must be for 10 working days starting on the expiry of the time specified in the notice to bring action (as defined by section 341). |
87.—(1) This regulation prescribes matters in relation to forfeiture under section 355.(2) For the purposes of section 355(2)(b), a dealer must undertake in writing to —| (a) | propose an arrangement for the disposal of the seized goods for the Director‑General’s approval; and | | (b) | dispose of the seized goods in accordance with an arrangement approved by the Director‑General —| (i) | within one month after the date of a notice given by the Director‑General; and | | (ii) | under the supervision of a customs officer. |
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(3) For the purposes of section 355(3)(a), the copies must be disposed of —| (a) | by the dealer; | | (b) | in accordance with an arrangement approved by the Director‑General; | | (c) | within one month after the date of a notice given by the Director‑General; and | | (d) | under the supervision of a customs officer. |
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| (4) If the dealer does not dispose of the copies within the period specified in paragraph (3)(c), the Director‑General must dispose of the copies and may do so in any manner. |
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| Non‑compliance with this Division |
| 88. For the purposes of section 357(1), the Director‑General or a customs officer may release any seized goods, or refuse to seize goods, if the person who made the request to seize or the request to continue detention in respect of those goods fails to comply with any provision in this Division. |
| 89. The Copyright (Border Enforcement Measures Fees) Regulations 2021 apply. |
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