Background
In our earlier note , we discussed the computational analysis provision (under the Singapore Copyright Act) as a specific defense to machine learning. In this article, we examine whether the fair use provision of the Singapore Copyright Act may also be available. This discussion might seem somewhat academic where it is possible to invoke the computational analysis defense. Nevertheless it is still useful to consider fair use defense in the context of machine learning, especially where a viable case can be made for the defense.
Fair Use Principles from Parallel Factual Scenarios
Although there is no case on point the following Singapore Court of Appeal decision may be instructive on how a Singapore court will apply the principles in section 35 to machine learning – Global Yellow Pages ( GYP ) v Promedia. [2017] SGCA 28
In this case GYP v Promedia, the Plaintiff claimed that the Defendant infringed its copyright in its business listings and Yellow Pages directory. Defendant’s modus operandi in producing its business listings includes taking data in from the Plaintiff’s business listings and Yellow Pages directory, thereafter merging them with their existing database. Such taking may entail photocopying and scanning to facilitate access to the data in the listing.
The copyright infringement action was dismissed on various grounds, one of which was the Singapore Court of Appeal ( CA ) allowing the defense of fair use under section 35(2) of the Copyright Act. The act complained of was the Defendant’s photocopying and scanning of the Plaintiff’s listings; the purpose was for the defendant to readily access the data in these listings.
The Court of Appeal was required to consider the application of fair use as defense to the photocopying/scanning of Plaintiff’s phone directory for the purpose of “accessing the data” to complete the entries in the Defendant’s business listings. The CA found in favor of the Defendant on the ground of fair use. The fair use factors (section 35(2)) that the CA had to consider were: The purpose and character of the dealing, including whether such dealing is of a commercial nature or is for non-profit educational […]
No case law, but Singapore courts may favor fair use for machine learning under specific parameters.
