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Singapore High Court Clarifies the “article” element of Copyright Offences.

 

2 October, 2011
 
S. 136 of the Singapore Copyright Act (Cap. 63) (the “Act”) makes it an offence to trade in “any article” which the offender “knows, or ought reasonably to know, to be an infringing copy of the work”. The offender is punished by, inter alia, a fine of up to SGD 10,000 per article. The question which arose in the recently reported decision of Yu Peng Hsueh-Shu v Public Prosecutor and another matter [2011] SGHC 198 (“Yu Peng”), was whether each infringing copy is an article, or whether there are instances where an article may comprise several infringing copies.
 
In Yu Peng, the appellant was charged with having in her possession for the purposes of distribution 24 external hard disks containing a total of 8,436 infringing copies of visual recordings and song titles. The trial court construed each infringing copy as an article, and sentenced the appellant to 7 months imprisonment based on her possession of 8,436 infringing articles. The High Court disagreed, and instead held that there were only 24 external hard disks and therefore only 24 articles.
In coming to this conclusion, the High Court referred to the Court of Appeal decision of Public Prosecutor v Poh Kim Video Pte Ltd [2004] 1 SLR(R) 373 (“Poh Kim Video”). In Poh Kim Video, where the Court of Appeal considered a box set comprising 18 VCDs as a single article and not 18, and consequently, the offender was sentenced based on the number of box sets and not the number of VCDs.
 
However, the High Court in Yu Peng disagreed with the dictum in Poh Kim Video that the Court should not be restricted to sentencing offenders based on the number of storage discs because external hard disks may contain “hundreds of infringed works”. The High Court felt that it would not be reasonable to equate the relevant number of “articles” with the number of “infringing copies” in the discs because even a single pirated copy of a movie would already comprise of infringing copies of each of the copyrightable works or other subject-matter in the movie.
 
Ultimately, the High Court felt that the provisions should be interpreted based on the legislative policy in penalising the trade in the articles, and this meant that the meaning of “articles” must be construed based on the mode by which the offender trades in the “articles” to derive profit. In Yu Peng, the offender only ever intended to deal in the individual hard disks, and not the infringing copies stored therein, and therefore the articles were the individual hard disks. The High Court noted that an infringing copy may constitute an individual article if the offender was trading in individual copyrighted songs online instead.
 
The High Court varied the seven month sentence, replacing it with a fine of SGD 96,000. The number of infringing copies, the harm caused to the copyright proprietor and the profits derived from the trade would still be relevant insofar as they affect the overall culpability of the offender and this will be taken into consideration in sentencing. Accordingly, the fine of SGD 4,000 per article was substantially higher than the usual fine of around SGD 400-600.
 
The High Court in Yu Peng appears to have defined an “article” under s. 136 as the relevant subject-matter which an offender intends to deal in and profit from. If box sets are sold, then box sets are the articles. If hard disks are sold, then hard disks are the articles.
 
 
By Tiong Hou Yuen

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