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)