The Singapore Copyright Act (SCA) provides for a fair use exception modelled after the fair use provisions in U.S. copyright law. Under the fair use exception, whether the use of a copyright-protected work qualifies as a non-infringing fair use is assessed according to a number of factors including, the purpose and character of the use and the effect on the market for the work.
This fair use exception, if helpful, was nevertheless deemed too unpredictable and a specific exception was called upon to provide more certainty to the sector, in light of the increasing importance of TDM as a research and training tool for the AI sector.
Following a public consultation which began in 2016, the same year the Copyright Directive was published in the EU, proposed amendments for a new exception to copyright for use of works for text and data mining (TDM) were adopted by Parliament in 2021 and enacted in November 2021.
Under section 243 of the Copyright Act, “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 analyze 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.”
This computational data analysis exception extends to communicating the work to the public and publication of the work.
The following five conditions, set forth in the Copyright Act section 244(2) apply:
“(a) the copy is made for the purpose of computational data analysis; or preparing the work or recording for computational data analysis;
(b) the party does not use the copy for any other purpose;
(c) the party does not supply (whether by communication or otherwise) the copy to any person other than for the purpose of (i) verifying the results of the computational data analysis carried out by him; or (ii) collaborative research or study relating to the purpose of the computational data analysis carried out by him;
(d) he has lawful access to the material (the first copy) from which the copy is made; and
(e) one of the following conditions is met:
(i) the first copy is not an infringing copy;
(ii) the first copy is an infringing copy but –
(A) the party does not know this; and
(B) if the first copy is obtained from a flagrantly infringing online location (whether or not the location is subject to an access disabling order) – the party does not know and could not reasonably have known that;
(iii) the first copy is an infringing copy but –
(A) the use of infringing copies is necessary for a prescribed purpose; and
(B) the party does not use the copy to carry out computational data analysis for any other purpose.”
The Singapore courts have not decided if works solely produced by generative AI (as opposed to generative AI assisting human creators) will receive copyright protection.
However, it is likely that the courts will not grant copyright protection to works solely produced by generative AI. Doing so will discourage “stockpiling,” where generative AI is exploited to create works in bad faith and profit from inflated sales to creators.
