Jurisdiction - Singapore
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Singapore – That’s A Software Copy… Right?

4 August, 2014

 

Legal News & Analysis – Asia Pacific – Singapore – Intellectual Property

 

Installing software onto a computer constitutes copyright infringement when the installation is done with the consent of the copyright owner. This is not contentious under Singapore law. 


But apart from installing the software, is it also copyright infringement to run the software on a computer without license? 


Software is considered a ‘literary work’ under the Singapore Copyright Act, and benefits from copyright protection. For example, the owner of the copyright in software generally has the exclusive right to make copies of the software. During installation, a copy of the software is made on the user’s computer, and most commonly stored on the computer’s hard disk. Therefore, if the user does not have the copyright owner’s license to install the software, then the act of installation creates an infringing copy of the software, and the user thereby infringes the copyright in the software. 


Installation aside, in the context of the mere running of software without a valid license, the issues are not as straightforward. 


Similar legal issues have been considered by courts in other jurisdictions. For example, in the U.K. case of Regina v Higgs [2008] EWCA Crim 1324, the Court of Appeal addressed a claim of copyright infringement in the context of a CD-ROM containing a pirated video game that could be played on a gaming console. The Court of Appeal took the view that when the CD-ROM is played on the gaming console, the console reads into its random access memory (RAM) the program and copyright material included with it. This constitutes the making of a transient copy of the pirated game, which constitutes copyright infringement.


The ‘RAM copy’ has also been considered under U.S. law. It should be noted that the U.S. Copyright Act appears to adopt a stricter definition of “copy” compared to the Singapore Copyright Act. While the Singapore Copyright Act makes room for ‘transient’ copies, the U.S. Copyright Act defines “copies” as “material objects … in which a work is fixed … and from which the work can be perceived, reproduced or otherwise communicated”. A work is “fixed” where it is “sufficiently permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration”.

 

Notwithstanding the narrower definition of “copies”, the U.S. cases have demonstrated support for the ‘RAM copy’ in the context of copyright law. In Advanced Computer Systems v MAI Systems[1994] 845 F. Supp. 356, the Court found that RAM is finite and takes up space; that is, a copy of the computer program in RAM reduces the amount of RAM viable for other data, and therefore is a material object. Further, in Mai Systems v. Peak Computer, Inc. [1993] 991 F.2d 511, the Court held that “the loading of MAI’s operating software into RAM, which occurs when an MAI system is turned on, constitutes a copyright violation.”


Recently, our firm represented an established global software company in criminal proceedings brought against an alleged infringer on the grounds of wilful copyright infringement. The Singapore Court found, in our favour, that copyright infringement occurs when software is run without the license of the copyright owner. In line with its U.K. and U.S. counterparts, the Singapore Court accepted that an infringing copy of the software is made on the RAM of the user’s computer when the software is run without a proper license. 


Of course, this decision may not apply equally in every case as it would have to be considered in the context of the nature of the technology involved. And in the interest of full disclosure, this case is currently being appealed. But unless and until the decision is reversed on appeal, bear in mind that each time you run software on your computer, you may very well be making “copies” of the software in the context of copyright law.

 

ATMD Bird & Bird

 

For further information, please contact:

 

Angelique Chan, ATMD Bird & Bird
angelique.chan@twobirds.com

 

ATMD Bird & Bird Intellectual Property Practice Profile in Singapore

 

Homegrown Intellectual Property Law Firms in Singapore 

 
 

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