The Singapore Law Review

From the Chief Editor
Intellectual property (IP) is everywhere around us. The laptop you frantically type your assignments on, the music you listen to, that oh-so-fabulous pair of branded sneakers you sashay in – all these contain IP rights (IPR).

IP forms a cornerstone of today’s society and knowledge-based economy. IPR legislation aims to create a balance between private and public interests. When establishing IPR laws, legislators seek to ensure that the rights and obligations of creators and users of IPR are balanced with the social, economic and developmental objectives that governments desire their IPR laws to promote. As the economic importance of IPR has grown, so too has public debate over the social, economic and political consequences of the laws under which IPR, which are essentially monopoly rights, are legally protected.

This issue of Juris discusses some recent interesting and noteworthy IP developments. We also bring you a special interview with the Director-General of IPOS, Ms Liew Woon Yin, who shares with us IPOS’ work in regulating, facilitating and promoting IP in Singapore. In addition, WongPartnership gives us an intimate look into the work of an IP lawyer. Rounding up this issue is a special feature examining the recent measures aimed at addressing the problem of the shortage of lawyers in Singapore, from a law firm’s perspective.

We would like to thank WongPartnership for continuing its wholehearted support of the Singapore Law Review, through its generous sponsorship of Juris. Thank you very much!

The Singapore Law Review wishes all fellow students the very best for your upcoming examinations!

Maureen Poh (more…)

The Government has recently accepted the key recommendations of The Third Committee on the Supply of Lawyers, including: considering setting up a second law school; increasing the intake of students into the NUS Law Faculty; allowing Singaporeans (and PRs) who graduated from recognised overseas law schools with Second Class Lower Division Honours to practise law upon fulfilling certain conditions; and enabling Singapore law firms to recruit outstanding lawyers from abroad under a special scheme to practise limited Singapore law so as to enable Singapore law firms to grow and compete regionally.

What issues have prompted these recommendations, and what impact will the recommendations have? Tay Peng Cheng, Recruitment Partner at WongPartnership, shares his thoughts with Juris.

Q. What are the key recruitment issues faced by the Firm?
Generally, there is a limited pool of legal talent, considering the current limitations on qualification to the Singapore Bar and restrictions on hiring foreign lawyers. Beyond these, each practice also faces challenges unique to itself.

Litigation work, by its nature, attracts fewer entrants as compared to its counterpart, corporate practice. There is a perception that more career opportunities and options are provided by corporate practice.

As a leading local firm, we generally do not encounter many difficulties recruiting at the pupillage level. The difficulty is more in deciding whether we have the right candidate, based on the performance at an interview and the candidate’s academic abilities

Q. Why do lawyers leave the profession?
In addition to lawyers who leave the Firm to take up an in-house position, or who move to foreign firms, the trend of lawyers leaving the profession altogether is also a concern. Not everyone who reads Law becomes a lawyer. Not everyone who becomes a lawyer stays the long term. We’ve had pupils and associates leave us to fulfill their lifelong dreams — going into the arts, becoming a financial analyst, an oil trader or even taking up baking.

We believe the stress and long hours endemic to the profession do contribute to a retention problem. Furthermore, there is a growing desire of younger lawyers to work overseas.

In terms of practice-specific challenges, litigation work is stressful and can be very demanding. Younger lawyers tend to perceive corporate lawyers as having better career opportunities and options, and corporate law being more “glamorous”. This is quite evident from the many applications received from litigation lawyers from other firms applying to join our corporate practice. Fortunately, the turnover at the Firm’s Litigation department has not been high.

Corporate practice faces challenges from foreign firms. We have noticed in recent years a trend of our young corporate lawyers with 2 to 4 years PQE leaving local practice for foreign firms. While this is testament to the calibre of our lawyers and demonstrates how WongPartnership has been able to develop fresh lawyers into sought-after industry professionals, it is not easy to hire laterally to replace those who have left, given the limited talent pool.

Q. What measures does the Firm have to retain and develop its lawyers?
We strongly believe in developing our lawyers and providing them with the necessary guidance in their formative years. WongPartnership was recently voted as one of the best Singapore law firms to work for in a survey conducted by the Asia-Law publication. We were listed as tops in the areas of professional development, as well as supervision & guidance, and rated highly for salary competitiveness, opportunities to work on big/important deals and prospects for career advancement.

Retention strategies comprise many factors: remuneration, professional development, job opportunities and career progression within the firm. We have a strong firm-wide culture of hard work and we reward our lawyers accordingly, by linking remuneration to performance. There is open communication and lawyers receive frequent feedback from partners.

Our young lawyers are provided with opportunities and exposure by way of challenging work and secondments. The Firm also offers flexible working arrangements for lawyers with special family commitments.

We also recognise the importance of a good working environment. At WongPartnership, we mitigate the stress of work by organising regular welfare events such as talks and workshops, and product sales in the office. We also have lawyer’s lounges equipped with a bar, futsal table, X-box and dvd player for relaxation during a hectic workday.

Q. What do you think of the measures to increase the talent pool?
The Firm welcomes the initiatives proposed recently, and believes they will aid in the growth of the Singapore legal profession, and in strengthening Singapore’s position as a hub for legal services.

At first blush, it may appear to new entrants to the profession that they will face more competition. However, we believe that with the increasingly global marketplace, and the variety of career options open to qualified lawyers, the increase in the talent pool should be welcomed, and not feared. It can foster a
stronger and more vibrant profession.

Q. What is it like working for WongPartnership?
We believe we offer our lawyers the opportunity to work and learn from some of the best legal minds around on cutting edge work, in an environment that is both challenging and nurturing. We usually work in teams, with partners or senior
associates guiding the younger ones. The work is interesting, often on issues or practices that you do not get to learn about in Law School.

We have a friendly working environment, with partners, associates and staff on first name basis. You can always pop into each other’s rooms to bounce some ideas, seek guidance on perplexing points or even just plain gossip.

The work is hard, but the stress is compensated by the friendly atmosphere within the Firm. And of course, the pay is good.

Q. What are the qualities and competencies does WongPartnership look for in lawyers?
WongPartnership is still growing and we are always on the lookout for lawyers who are keen on challenging work for both our Corporate and Litigation practices.

A brilliant academic record is not a pre-requisite. What we value more are a good working attitude, desire to learn, and willingness to contribute: team players who can fit into the ethos of the Firm.

Sim Bock Eng, a partner at WongPartnership, shares with Juris his work as a lawyer specialising in IP Law.

Q: What is your scope of work like as a lawyer specialising in IP Law?
It is wide ranging — from the initial protection and exploitation of IP rights to its enforcement. In the exploitation of the IP rights, we could be involved in strategising the expansion of clients’ business overseas and the IP considerations critical to such expansion to ensure that the clients maximise the value of their IP (including on
relevant forms of protection in the relevant countries). In the enforcement of IP rights, we could be involved in the gathering of evidence in respect of any infringements of clients’ IP rights and consequential raids.

Q: What aspects of IP law does Wong Partnership handle?
The firm handles all aspects of IP law including registered and unregistered trade marks, patents, designs, copyright, confidential information, etc.

Q: Could you share with us some of the more interesting or memorable IP cases that you and your colleagues have done?
We were appointed by a manufacturer to maximise the value of their IP rights and their branding. The manufacturer has neglected their IP rights over the years though they have expanded their business and distribution channel of their products into various countries. This resulted in infringement products in these countries by competitors who sought to copy their name and trademark, as well as the inability to extract as high a price for their products as their competitors. Working with associates in these different jurisdictions, we were able to strategise their IP directions, better manage their IP portfolio and tighten the control and enforcement of their IP rights.

We acted for Vigers, an international property consultants, in their termination of their licensees in Singapore. Whilst the termination was provided for in the Licence Agreement, the matter was tried over more than two weeks and the local licensees fought aggressively to retain the use of the name “Vigers”. Clients succeeded in their claim for the return of their “Vigers” name in Singapore. The case is illustrative of the value which both parties place on the name and trademark.

One of the more memorable cases is probably when we were conducting an Anton Pillar search on a manufacturer of construction formworks, which infringed those belonging to clients. The entire exercise was a lesson on not to underestimate the size of the task. The office was somewhere in Tuas and whilst the operation was successful, we were left stranded for quite a while! We had also underestimated the amount of infringing materials there would be, resulting in these construction materials having to be stored in tional warehouse space.

Q: What do you think of the notion that the IP system favours the rich “genius” but not the poor one?
We do not think it is true, in fact, it is IP that protects the ingenuity of the inventor/ creator and allow him/ her to realise the true value of his/ her creation. Eg recently, the sale of Hardware Zone, a site created by six NUS engineering first year students, to Singapore Press Holdings for S$7.1 million. As an internet site, Hardware Zone would have limited tangible assets. The price paid is a recognition of the goodwill and IP rights in the name “Hardware Zone”.

The inventor/ creator may find the initial cost of seeking such protection prohibitive, especially in the case of start-ups. This “barrier” to entry can however be overcome by careful planning and allocation of available resources. In Singapore, there are also various schemes designed to help these start-up companies.

Q: In what way is the actual practice of IP law different from IP Law taught and studied in law school?
There is a fair amount of commercial knowledge and business know-how involved in the practice of IP law. One should not underestimate the influence of commercial considerations when advising clients.

Q: For those who are interested in specializing in IP law – what makes a good IP lawyer?
Faith in inventions, creations or ideas which a lot of people may put little weight on because it is out of the ordinary. An IP lawyer should remember that clients are people on the cutting-edge, with novel ideas, inventions, which may be the next “big thing” to take the
world.

He/she should also be technically and commercially savvy to better understand clients’ requirements and translate these into effective IP strategies. An acquaintance with IP protection outside of Singapore would also be very helpful.

Pey Yinjie is a third year law student and an associate editor of the Singapore Law Review.

Trademark infringement undermines the proprietary rights of the owner and misleads the public consumer. So where should the line be drawn?

A logo speaks a thousand words.

Trademarks serve the purpose of distinguishing a business and its products and services from that of other businesses. They therefore explain why we tend to choose certain goods over others even though the nature of other products is similar. When the distinctiveness factor is of paramount importance, it poses a legal problem when the owner of a registered trademark can no longer maintain exclusive rights due to an unauthorised use of the same or similar sign.

In most instances, trademark infringement disputes arise from the alleged attempt of one party to “ride on” the popularity of an established characteristic of a brand name, consequently creating a likelihood of confusion about the origin of the goods or services being offered.

The extent of enforcement of trademark rights may differ in different jurisdictions. In a very recent case of Future Enterprises Pte Ltd v. McDonald’s Corp, [2006] SGHC 175, fast-food giant McDonald’s brought an action to disallow application for registration of the “MacCoffee” mark. It saw McDonald’s triumph yet again following the other 5-year legal battle with a small restaurant named “McCurry” in Kuala Lumpur.

It was held by the Singapore High Court that the two marks, “McCafe” and “MacCoffee” were sufficient in their “visual, aural and conceptual similarities” such that there is a likelihood that “MacCoffee” would confuse the public.

In an interesting contrast with a similar case this year in South Korea, the coffee-chain Starbucks lost a second trademark lawsuit with a local company Elpreya even though the trademark in dispute is starkly similar to that of Starbucks. The court ruled that the words look different and that there is no evidence that Elpreya plagiarised the distinctive mark. Many have expressed sceptism over the decision especially when it is compared with other instances where the infringement is arguably less blatant.

Although different jurisdictions may vary in their enforcement of trademark rights, it is nevertheless true that it is a global movement for the law to safeguard the rights of trademark owners so as to achieve the twin effects of providing an incentive for businesses to maintain the quality of goods as well as to prevent consumers from being misled.

On the other hand, it remains to be seen how the pervasive force of counterfeit goods trading, part of a world trafficking phenomenon, can be reined in when the consumers themselves contribute to a two-way synergy that the law might find hard to penetrate.

Tan An Qi is a first year law student and an associate editor of the Singapore Law Review. She is the Deputy Juris Editor. — Juris Illuminae Vol. 3 Issue 2 (November/December 2006)

In this special interview, the Director-General of the Intellectual Property Office of Singapore (IPOS), Ms Liew Woon Yin, shares with us IPOS’ work in strengthening the IP regime and promoting greater IP awareness in Singapore.

Q: We understand that the organisation was called the Registry of Trade Marks and Patents from 1937 to 1999. Why the change of name to IPOS?

The change of name was to reflect our expanded scope to cover a larger range of Intellectual Property (IP) laws in addition to trade marks and patents. It was also to signify our conversion to a statutory board in 2001 under the Ministry of Law.

Q: What role does IPOS play today? Is IPOS’ role likely to expand in the future?

IPOS is the lead government agency that formulates and regulates IP laws, promotes IP awareness and provides the infrastructure to facilitate the greater development of IP in Singapore. With IP fast becoming a critical resource in today’s new economy, IPOS’s vision is to foster a creative Singapore where ideas and intellectual efforts are valued, developed and exploited. More information on IPOS can be found on www.ipos.gov.sg.

Q: Take us through some of the various IPOS initiatives - what are their aims and how effective have they been?

IP Parade
The SurfIP IP Parade is a platform where IP/technology owners can evaluate, exploit and commercialise their IP/technology. It enables IP owners to market, license or sell their technology solutions and IPs by listing them on the IP Parade.

As part of a new private-public sector collaboration, IPOS has licensed the rights to operate and manage SurfIP.com to private sector player. The licensing of SurfIP’s successful brand to a private entity with good business acumen will bring about new enhancements to the portal as well as better value-added services for the global IP community. For instance, a new feature is the match-making service to broker between suppliers of technology and investors with demand.

HIP Alliance
HIP stands for ‘Honour Intellectual Property’. The HIP Alliance is a group of Government agencies, private and industry associationswith a common interest in pursuing the need for education on IP. In partnership with the HIP Alliance members, the Alliance is teaching people to respect and reward original creative works by Saying NO! to Piracy. By urging Singapore to Say NO! to Piracy, the HIP Alliance and IPOS are encouraging people to Be original, Be Creative, Be HIP and to Live for Real.

To date, we have about 7,000 HIP-Friends who are members of the public who have pledged their respect for IP. We have also launched a HIPFriends website to engage these HIPFriends actively.

IP Education and Resource Centre (IPERC)
IPERC is both a physical centre and brand name for a series of IP educational programmes. Opened to the public, the physical centre is located in IPOS, where the public can gain access to comprehensive, up-to-date IP research materials.

IPERC also provides educational programmes as well as resources to the various target sectors. Resources include an online directory of IP professionals in Singapore (SNIPS) as well as an IP Starter providing basic IP management pointers for companies and case studies on IP-savvy companies. IP Consult sessions, one of the programmes under IPERC, consist of group dialogue and one-on-one individual sessions where your IP-related questions are answered by IP professionals. These monthly sessions have been well-received by the participants.

A spin-off from IPERC is iperckidz which is targeted at the students. iperckidz aims to provide IP facts to the students and teachers in the form of a one-stop online resource centre. Regular assembly talks are conducted in schools to provide basic, easy-to-understand information about IP to the children. In addition, a CD-Rom and video was developed to further disseminate information to the students in a fun and interactive way.

Intellectual Property Creation, Protection and Exploitation (IP-CEP)
IP-CEP is an umbrella programme designed for the businesses. It looks at how we can assist businesses in creating, exploiting and protecting their IP. Some of the tools we adopt are SurfIP (www.surfip.gov.sg) , a one-stop portal that allows IP search across multiple databases worldwide, and SCOPE IP (Strategies for Creation, Ownership, Protection and Exploitation of Intellectual Property), a diagnostic tool that helps companies assess their intellectual assets so as to gain maximum value from them.

Q: There has been a discernable decrease in the number of fake CDs and other goods being available on street corners. What role did IPOS play in
the clean up?

To combat piracy, the government agencies work closely together using a “3E approach” – Enforcement; Education and Engineering (which refers to the creation of an environment where public is exposed to genuine products readily).

In our educational efforts, we recognise that there are various groups of target audience within our population such as the business community, the students, IP professionals etc that have different needs and priorities and therefore respond differently to our messages. To attract their attention and garner their buy-in, we have to speak their language and customise our messages accordingly. As such, we have different programmes targeting at the different groups, with HIP designed for the general public, iperckidz for students and IPERC, SurfIP and SCOPE IP for the businesses, among others.

It is hoped that with these different educational programmes, we can raise the IP awareness levels across the nation, paving way for an IP-respecting and savvy generation.

Q: The new challenge is file-sharing over the Internet – from movies to the latest mp3s. Many young people still do not know it is wrong, or perhaps are impatient and think it is faster than taking the extra step to buy the originals. What is your advice to such young persons?

Our call to everyone is to respect IP and reject piracy. Illegal downloading of copyrighted music, or of any other copyrighted materials such as movies, is a breach of our copyright law. It is equivalent to stealing, as the copyright owner has not given permission for the download. The Internet and advancements in technology have made it easier for individuals to be able to cause considerable harm to copyright owners, their investments and creative efforts. It is therefore important that copyright laws prevent this. The intent of such laws is to target individuals who deliberately choose to infringe copyright laws for commercial gain, or to a significant extent, in terms of volume and value of the goods, as well as the impact of the infringement on the copyright owner. Users who occasionally download a few songs illegally for their own personal enjoyment are not the primary target of these laws, although they may still face civil action.

Q: How many employees does IPOS currently have? Are there any opportunities for NUS law students to apply for internships at IPOS? Are there career opportunities at IPOS after graduation from NUS Law School?

At present, we have about 140 employees in IPOS. We welcome NUS law students to apply for internships with us and there are definitely opportunities for NUS law graduates to take up legal positions with us when vacancies are available.

Juris Illuminae Vol. 3 Issue 2 (November/December 2006)

If you were to ask any student on the street today as to the means by which you are able to download music, chances are that he will be able to name you a myriad of peer-to-peer (P2P) networks where music is easily available in free and unlimited amounts. In contrast, ask any student about his idea of intellectual property (IP) and chances are that he will not be able to name the organizations that are responsible for protecting the IP rights of artistes, for example.

This striking contrast is indeed indicative of the attitudes of students not only in Singapore but also worldwide. In an age where numerous avenues are available by which you can download music, purchase knock-off fashion labels or watch bootleg movies without any regard to the IP rights of the creators of such items, it is much easier to infringe on IP rights than to respect them. When interviewed, various students have pointed to the high costs of originals, the difficulty of paying for online music and the limited content provided by online music stores as the reasons why they choose to download music and movies from illicit sources.

In the light of various enforcement actions taken against illicit downloaders of online content, various responses of students have ranged from outright defiance to fear of possible actions taken against them. Some have stated they will continue to download and even criticised the manner in which the Internet service providers (ISPs) assisted with enforcement actions. Although their attitudes range from fear to outright defiance, one interesting fact is that none have stopped to consider the outright illegality of downloading online content without paying the copyright owners for it. Clearly, students are largely ignorant to the idea of intellectual property and these enforcement actions only serve to make students fear IP rights instead of respecting them.

The lure of free music and knock-off fashion labels that look exactly like the originals but at a fraction of the price undoubtedly are the main factors that influence many to infringe IP rights. As long as IP is associated with high prices, limited availability and intrusive enforcement actions, students are more likely to fear IP rights than to respect them. Unfortunately, in spite of fear for infringement-related liabilities, many may still find ways to circumvent enforcement methods while continuing to download or purchase illegal versions of the originals, especially considering the “IT-savvy” nature of the general population today. The key may lie in cultivating respect for IP rights among the users, a huge ideological leap from the current prohibitive tactic of instilling fear which requires a totally different level of awareness on the part of end-users.

Andrew Teo is a first year law student and an associate editor of the Singapore Law Review. – Juris Illuminae Vol. 3 Issue 2 (November/December 2006)

Patents are grants of statutorily prescribed exclusive rights in relation to an
invention for a specific period of time. Such grants are often described as a quid pro quo whereby the patentee receives the benefit of a monopoly in exchange for conferring new knowledge on the general public. The balance in such exchanges has however been altered with the introduction of the WTO’s Trade-related Aspects of Intellectual Property Rights Agreement (“the TRIPS agreement”), subsequently reflected locally in the Patents Act (Cap. 221, 2005 Rev. Ed. Sing.). With the advent of this agreement, a new creature in compulsory licensing arose. This article thus seeks to discuss the ramifications of this facet of intellectual property law and to dispel any prevalent misconceptions in this regard.

Compulsory licensing occurs when a government permits a third party to
produce a patented product or utilise a patented process without the consent of the patent owner. This has been made possible pursuant to article 31 of the TRIPS agreement and s. 55 of the Patents Act. In recent times, such power has een exercised in the case of pharmaeutical drugs. In 2004, Malaysia issued a compulsory licence to a Mumbai-based company for the supply of anti-retroviral medicines used in the treatment of AIDS. Recent concerns with regards to the bird flu pandemic also triggered the Canadian government’s decision to add Osteltamivir (more commonly known as Tamiflu) to a list of pharmaceutical products eligible for compulsory licensing for export in February this year. These cases are merely illustrative of the vast number of compulsory licenses that have been granted worldwide.

It is a common misunderstanding that such licensing can only be given in casesof emergency. In reality, the TRIPS agreement does not specifically list circumstances whereby compulsory licensing may be justified, and the 2001 Doha Declaration on TRIPS and Public Health confirms the freedom of member countries in determining the grounds for granting compulsory licences. Indeed, s. 55 of the Patents Act provides for the application of such grant should it be necessary to remedy an anti-competitive practice.

The underlying rationale for compulsory licensing is obvious – to strike a balance between corporate and public interests. However, though this sentiment is laudable, it remains to be seen if this would lead to adverse effects in the research and development sector and contravene the very purpose of patents themselves. While some may argue that studies are still largely inconclusive vis-à-vis the effect of patents on corporate research and development growth, the loss from compulsory licensing stems not from its negation of the patents’ positive effect per se, but from the entrenched expectations of would-be patentees. Where a company researches with the expectation that its inventions can be patented and its rights enforced, it will undoubtedly be disgruntled should such benefits be taken away with only the detriment left to bear. Although provisions are in place for reasonable compensation to be made to the company in question, such compensation must surely be far less than the company’s potential profits otherwise.

“Corporate wealth or public health?” – therein lies a conundrum that is not so easily answered. Thus, away from clear-cut situations of global or national emergency, it may be well advised that compulsory licences are granted in a careful and sparing manner.

Jeth Lee is a second year law student and the Juris Editor. He is also the Deputy Editor of the Singapore Law Review. – Juris Illuminae Vol. 3 Issue 2 (November/December 2006)

Until recently, legal prohibitions on the illegal sharing of digital music seemed to be honoured more in the breach than the observance in Singapore. However, this month has seen high-profile enforcement actions against end users. On 17 October, the Recording Industry Association of Singapore (RIAS) filed with the police 25 new cases of illegal music file-sharing. Just days before, the police had seized the computers of seven illegal music file-sharers. Coupled with the imprisonment of two Singaporean men in February for the non-profit distribution of pirated digital music files through an Internet chat program (the first time that a non profit-making offence has been prosecuted under Singapore’s Copyright Act), the definite impression is that illegal downloading may be becoming more risky than it is worth. This article examines the basis for the rising enforcement of copyright laws against end users, as well as its legal and practical implications.

The recent enforcement actions find their legal basis in the November 2004 amendments to our Copyright Act, passed as part of our obligations under the high-profile United States- Singapore Free Trade Agreement. The amendments give copyright owners an exclusive right of communication, including the making available to the public of works by wire or wireless means. Users who make unauthorised music files available to other end users via P2P networks clearly infringe this right. Furthermore, those who access and download such files will violate the traditional reproduction right.

Statutory damages (up to a cap of $20 000) have been added to the civil remedies available against end users. Significantly, whereas criminal penalties had hitherto been used only against commercial pirates, it is now a criminal offence to commit wilful copyright infringement if the extent of the non-profit infringement is significant. First-time offenders face up to a $20 000 fine and/or imprisonment up to 6 months; harsher penalties await repeat offenders.

One might be tempted to argue that these legal developments are unconstitutional and undermine digital consumers’ right to privacy. Under a subpoena power similar to that in the US’ Digital Millennium Copyright Act (DMCA), copyright owners can compel Internet Service Providers (ISPs) to release the IP addresses and identities of their users who have illegally downloaded music. In the US, the DMCA subpoena power as been challenged as being contrary to the judicial power and due process clauses of the Constitution. However, the Singapore constitution has no counterpart to these clauses. Furthermore, our court has been reluctant to follow the liberal approach of courts in America, Australia and India in implying a right to privacy into the constitution. While there are e-commerce codes that restrict the commercial use of private information, in general such codes do not preclude the use of private information for the purposes of law enforcement. Thus, from a legal viewpoint the harsher copyright laws are probably legitimate.

It then remains for end users to wonder if the days of “click-happy” music downloading are over. While no numerical guidelines have been provided, the amended Act states that non-profit downloading must be “significant” to be prosecutable. The court shall have regard to a number of factors including the volume and value of any articles that are infringing copies, and whether the infringement has a substantial prejudicial impact on the owner of the copyright. The Straits Times reported that “thousands” of music files had been discovered on the seized computers. Thus, it seems that the key is moderation. End users should try to find a balance between harnessing the benefits of modern technology and abusing it to the extent that the investment of music creators and owners is undermined.

In any case, the authorities may be fighting a futile war. It is instructive to place the recent developments in the context of the recent battle history between copyright holders and the online file sharing services. In 2002, the recording industry scored a victory against Napster as the service was held guilty of contributory infringement. But the victory was short-lived, as P2P service providers merely took the court’s decision as a blueprint for new business models. Napster made the mistake of placing an index of its users’ files in a centralised database; the new services (Grokster, Morpheus, KaZaA) thus favoured decentralised solutions. Although Grokster lost its case before the Supreme Court last year, the court’s new focus on “active inducement” merely invites P2P software developers to create systems that reduce their involvement even further, so that for the courts to indict them on such basis would seem tenuous and undermine the legitimacy of the enforcement enterprise.

Similarly, the shift in focus to personal liability will be met by innovative technological responses. For example, the Freenet model of P2P file sharing focuses on rendering the activities of its users anonymous. This creates a problem for enforcers because it is difficult to know where the infringing material originated from. Ultimately, technology will find its way. Perhaps the best hope lies in education, such that our population will not only be “IT-savvy”, but “IP-savvy” as well.

Peggy Pao is a Dip.Sing. student and an associate editor of the Singapore Law Review – Juris Illuminae Vol. 3 Issue 2 (November/December 2007)

Intellectual property refers to creations of the human mind which when duly protected can become valuable property. Intellectual property comprises an open list of protected intangibles that is consistently growing. Some of the more traditional areas of intellectual property are copyright, trademarks, patents and rights related thereto.

Copyright is the exclusive right of creators of works to preclude others from
exploiting their created works. The traditional domain of copyright protection s in the sphere of literary or artistic orks, though recent times have seen debates over whether computer programs are copyrightable. Historians have traced copyright law as far back as the Statute of Anne of 1710 which regulated book trade. The Statute evolved into the Copyright Act 1911 which is the epitome of modern copyright law, whereby the exclusiveness of the right is considered justifiable due to the social and economic gains that such rights confer to creativity and advancement of knowledge in the society. In addition, it is also believed that the law should recognise the product of one’s labour by enabling the creator of the works to exclusively produce the works in order that they may obtain some economic returns from their creation. Generally, countries adopt the standard of grant of copyright for the duration of the life of the creator of the work and a further fifty or seventy years.

A patent is a limited monopoly which isgranted in return for the disclosure of technical information. The purpose behind the grant of a patent is to encourage inventors to disclose their inventions so that persons who are skilled in the art can use it and in return, the inventors are granted exclusive rights to control the way their inventions are exploited for a twenty-year period. Because of the monopolistic nature of a patent, a patent owner could prevent others from using the patented invention, it being immaterial whether the
use was carried out by virtue of copying or by independent creation.

Trademark law and the law of passing off essentially deal with the protection of the goodwill of a trader from unfair competition and the protection of consumers from deception and confusion in the market. The subject matter protected by trademark law is essentially confined to trademarks and well-known marks but the subject matter of the law of passing-off includes trademark, goodwill, get-ups and may also extend to cover commercial slogans which by substantive use have become taken by the public to denote a connection with the products by which the slogans are used.

Intellectual property law is fast becoming a more important aspect of everyday life…

It is interesting to note that Article 2 of the World Intellectual Property Organization Convention defines intellectual property to include the rights relating to literary, artistic and scientific works, performances of performing artists, phonograms, and broadcasts, inventions in all fields of human endeavour, scientific discoveries, industrial designs, trademarks, service marks, and commercial names and designations, protection against unfair competition, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields. Today, rights in intellectual property have also expanded to encompass the protection of software copyright and patents, bio-medical and bio-technology patents and business methods patent.

Intellectual property law is fast becoming a more important aspect of everyday life as its scope continues to expand. This issue of Juris hence focuses on some issues of interest in the arena of intellectual property law. Although the articles cover diverse types of intellectual property, we can discern three overarching and urgent themes. First, intellectual property law ultimately seeks to achieve the optimal balance between the interests of creators (or their employer corporations) and consumers (or the public domain). Second, technology is a double-edged sword: advances in technology can be used both to entrench and to circumvent intellectual property protection. Finally, given the dual nature of technology, our best hope for achieving the optimal balance in the sphere of intellectual property might lie in non-technological solutions such as education and re-evaluating market strategies.

Foo Meng Yeen is an LLM student and an associate editor of the Singapore Law Review. – Juris Illuminae Vol. 3 Issue 2 (November/December 2006)