A key  amendment to the 2021 Singapore Copyright Act (CA) is the introduction of defence of copyright infringements for machine learning.

This is the first in the South East Asian region and no doubt with the aim to attract AI investments into Singapore. This machine learning defense (referred to in the Copyright Act as “computational analysis”) is found in sections 243 and 244 of the CA.

This article discusses the application and scope of the computational analysis defense for machine learning and the limitation of the defense.

We also discuss what businesses should do about their IT infrastructure. Singapore and in the ASEAN region.

The legal defence under Computation Analysis

Machine learning requires data and information to learn from and typically this comes from content scraped from third party websites which could potentially be regarded as copyright infringement.

This risk could now be neutralised by the Computational Analysis defense of the CA - under section 243:

Interpretation: what is computational data analysis

1. 243. In this Division, “computational data analysis”, in relation to a work or a recording of a protected performance, includes —

(a) using a computer program to identify, extract and analyse information or data from the work or recording; and

(b) using the work or recording as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data.

Illustration

An example of computational data analysis under paragraph (b) is the use of images to train a computer program to recognise images.

Copying or communicating for computational data analysis

244.—(1)  If the conditions in subsection (2) are met, it is a permitted use for a person (X) to make a copy of any of the following material:

(a) a work;

(b) a recording of a protected performance.

“The permitted acts” include reproducing as well as storing works for the purpose of “computational data analysis”.

“Computational data analysis” is defined to include: “using a computer program to identify, extract and analyse information or data from the work or recording”; and “using the work as an example of a type of information or data to improve the functioning of a computer program in relation to that type of information or data”.

The provision gives an example of computational example of using images to train a computer program to recognize images.

“Computational analysis” would arguably be broad enough to have machine learning fit into its purport.  The scope has been confirmed by the Intellectual Property Office of Singapore (IPOS) in a fact sheet released on its website, which says that it is a defence to “the copying of copyright works specifically for the purpose of computational data analysis, e.g. sentiment analysis, text and datamining, and training machine learning.”

The defense extends to use of the copyright work for the purpose of “verifying the results of the computational data analysis carried out”.  It also extends to sharing of the same work with another party provided that it is “collaborative research or study relating to the purpose of the computational data analysis”.

Necessary conditions to invoke the defense. The defense applies where:

1. The use of third-party works are for computational analysis as described above;
2. the user had “lawful access” to the copy of the work which he or she accessed (the “first copy”);
3. where such “first copy” is an infringing copy, the user was not aware of this.

Scope of the defense - the scope for lawful access is broad as clarified by Section 187 CA which says that the defense cannot be excluded or restricted by contract – such contractual terms will be void and unenforceable.   It is arguable that restrictions in a website’s terms of use will therefore be rendered ineffective by Section 187 CA, and those terms will not negate the computational analysis defence assuming that the access was not made by circumventing any pay wall in the first place.

Territorial application - As is the case with most countries’ copyright laws the computational analysis defence will only apply for acts carried out in Singapore.

South East Asian countries

As at the date of this article, neighbouring countries Malaysia, Indonesia, Vietnam, Thailand have yet to consider adopting similar copyright infringement defences.  Providing a defence tailored to generative machine learning will offer business certainty to businesses that have adopted the technology or intend to invest in AI tools in Singapore.

This amendment goes towards Singapore’s ambition to promote its AI powered data center sectors as well as businesses that are adding or stepping up  their AI capability especially in the generative AI field.

Practical implications for businesses

Businesses with IT operations in South East Asia should consider the location of their infrastructure and/or data centers hosting their cloud servers. Businesses should review the respective copyright and AI governance position in each of these countries. Those with machine learning infrastructure in Singapore should review their internal IT policy in the light of the scope and limitations under the Singapore Copyright Act’s computational analysis exception, so that the benefits of this exception are capitalised fully.