Règlement de 2005 sur le droit d'auteur (Fournisseur de services de réseau), Singapour

S 220

COPYRIGHT ACT

(CHAPTER 63)

COPYRIGHT (NETWORK SERVICE PROVIDER) REGULATIONS 2005

In exercise of the powers conferred by sections 193DE, 202 and 252CE of the Copyright Act, the Minister for Law hereby makes the following Regulations:

Arrangement of Provisions

1 Citation and commencement 2 Definitions 3 Notice under section 193C (2) (b) or 193D (2) (b) (iii) or (4) (b) (iii) of Act 4 Conditions under section 193C (2) (c) of Act 5 Prescribed information on designated representative 6 Notice under section 193DA (2) (b) of Act 7 Evidence under section 193DC of Act 8 Other prescribed conditions under section 193DE (2) (b) of Act 9 Notice under section 252B (2)(b) or 252C (2) (b) (iii) or (4) (b) (iii) of Act 10 Conditions under section 252B (2) (c) of Act 11 Notice under section 252CA (2) (b) of Act 12 Evidence under section 252CC of Act 13 Other prescribed conditions under section 252CE (2) (b) of Act

THE SCHEDULE

COPYRIGHT ACT

(CHAPTER 63)

COPYRIGHT (NETWORK SERVICE PROVIDER) REGULATIONS 2005

In exercise of the powers conferred by sections 193DE, 202 and 252CE of the Copyright Act, the Minister for Law hereby makes the following Regulations:

Citation and commencement

1.—These Regulations may be cited as the Copyright (Network Service Provider) Regulations 2005 and shall come into operation on 18th April 2005.

Definitions 2.—In these Regulations, unless the context otherwise requires —

"complainant" means a person who furnishes a notice under and in accordance with section 193C (2) (b), 193D (2) (b) (iii) or (4) (b) (iii), 252B (2) (b) or 252C (2) (b) (iii) or (4) (b) (iii) of the Act;

"electronic copy" has the same meaning as in section 193A (1) of the Act;

"electronic recording" has the same meaning as in section 246 (1) of the Act;

"material" has the same meaning as in section 193A (1) of the Act;

"network service provider" means a person who —

(a) provides services relating to, or provides connections for, the transmission or routing of data; or

(b) provides, or operates facilities for, online services or network access;

"originating network" , in relation to an electronic copy of any material or an electronic recording of any performance, means a network on which the electronic copy or electronic recording, as the case may be, is made available;

"performance" has the same meaning as in section 246 (1) of the Act;

"primary network" , in relation to a network service provider, refers to a network controlled or operated by or for the network service provider;

"respondent" means a person who —

(a) is notified under section 193DA (2) (a) or 252CA (2) (a) of the Act of the removal of, or the disabling of access to, any electronic copy of any material or any electronic recording of any performance, as the case may be, made available by him on a network; or

(b) furnishes a notice under section 193DA (2) (b) or 252CA (2) (b) of the Act in accordance with the requirements of that provision.

Notice under section 193C (2) (b) or 193D (2) (b) (iii) or (4) (b) (iii) of Act

3.—(1) A notice under section 193C (2) (b) or 193D (2) (b) (iii) or (4) (b) (iii) of the Act shall be furnished to a network service provider —

(a) by leaving the notice at, or sending the notice by registered post to, the address referred to in regulation 5 (1) (c);

(b) where the network service provider has provided any facsimile number under regulation 5 (1) (d), by transmitting the notice to the network service provider by facsimile transmission at that facsimile number; or

(c) by transmitting the notice to the network service provider by electronic mail at the electronic mail address referred to in regulation 5 (1) (d).

(2) A notice under section 193C (2) (b) or 193D (2) (b) (iii) or (4) (b) (iii) of the Act shall be in, or substantially in accordance with, Form A in the Schedule, shall be signed by the complainant and shall contain the following:

(a) the name and address of the complainant;

(b) where the complainant is acting on behalf of a copyright owner or an exclusive licensee, the name and address of the copyright owner or exclusive licensee;

(c) where the complainant is not resident in Singapore, the complainant's address for service in Singapore;

(d) a telephone number, a facsimile number (if any) and an electronic mail address at which the complainant can be contacted;

(e) sufficient particulars to enable the network service provider to —

(i) identify the material in respect of which copyright is alleged to have been infringed;

(ii) identify and locate the electronic copy alleged to be an infringing copy of the material referred to in sub-paragraph (i), including the online location of that electronic copy; and

(iii) where the notice is a notice under section 193D (4) (b) (iii) of the Act, identify and locate the means by which the network service provider is alleged to have referred or linked a user of any network to the online location of the electronic copy referred to in sub-paragraph (ii);

(f) where the electronic copy referred to in sub-paragraph (e) (ii) is on the network service provider's primary network, a statement that the complainant requires the network service provider to remove or disable access to that electronic copy;

(g) where the electronic copy referred to in sub-paragraph (e) (ii) is on a network other than the network service provider's primary network, a statement that the complainant requires the network service provider to disable access to that electronic copy;

(h) a statement that the complainant, in good faith, believes that the electronic copy referred to in sub-paragraph (e) (ii) is an infringing copy of the material referred to in sub-paragraph (e) (i);

(i) where the notice is a notice under section 193C (2) (b) of the Act, a statement —

(i) that another electronic copy of the material referred to in sub-paragraph (e) (i) (referred to in this sub-paragraph as the originating electronic copy) was made available on a network (referred to in this sub-paragraph as the originating network);

(ii) that the electronic copy referred to in sub-paragraph (e) (ii) is a cached copy of the originating electronic copy; and

(iii) that —

(A) the originating electronic copy has been removed from the originating network or access to the originating electronic copy on the originating network has been disabled; or

(B) a court has ordered that the originating electronic copy be removed from the originating network or that access to the originating electronic copy on the originating network be disabled;

(j) a statement that the information in the notice is accurate;

(k) a statement that the complainant —

(i) is the owner or exclusive licensee of the copyright in the material referred to in sub-paragraph (e) (i); or

(ii) is authorised to act on behalf of the owner or exclusive licensee of the copyright in the material referred to in sub-paragraph (e) (i); and

(l) a statement that the complainant submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to any offence under section 193DD (1) (a) of the Act or any liability under section 193DD (1) (b) of the Act.

Conditions under section 193C (2) (c) of Act

4.—For the purposes of section 193C (2) (c) of the Act, the prescribed conditions are as follows:

(a) if the material is made available online by a person other than the network service provider, and that person has in effect any condition that another person must meet in order to have access to the material, such as a condition based on payment of a fee or provision of a password or other information, the network service provider shall permit access to the cached material on his primary network in significant part —

(i) only to users of the primary network or another network who have met those conditions; and

(ii) only in accordance with those conditions;

(b) the network service provider complies with rules concerning the refreshing, reloading or other updating of the cached material as specified by the person making available the material online in accordance with any generally accepted industry standard data communications protocol for the network through which that person makes the material available, if those rules are not used by that person to unreasonably impair the intermediate storage of the cached material; and

(c) the network service provider does not interfere with the ability of technology used at the originating network to obtain information about the use of any material made available on the originating network, if that technology —

(i) does not significantly interfere with the performance of the network service provider's primary network or the intermediate storage of the cached material; and

(ii) is consistent with any relevant industry standards in Singapore.

Prescribed information on designated representative

5.—(1) For the purposes of sections 193D (2) (c) and (4) (c) and 252C (2) (c) and (4) (c) of the Act, the prescribed information shall be —

(a) the name of the representative designated by the network service provider;

(b) the appointment held by the designated representative in the network service provider;

(c) the full address of the designated representative to which the notice under section 193D (2) (c) or (4) (c) or 252C (2) (c) or (4) (c) of the Act should be sent; and

(d) a telephone number, a facsimile number (if any) and an electronic mail address at which the designated representative can be contacted.

(2) For the purposes of sections 193D (2) (c) and (4) (c) and 252C (2) (c) and (4) (c) of the Act, a network service provider shall publish the prescribed information referred to in paragraph (1) —

(a) on its Internet website in an online location accessible to the public; and

(b) by providing that information to the Office in such form and manner as the Office may specify.

(3) The Office shall maintain a directory of designated representatives on an Internet website in an online location accessible to the public.

Notice under section 193DA (2) (b) of Act

6.—(1) A notice under section 193DA (2) (b) of the Act shall be furnished to a network service provider —

(a) by leaving the notice at, or sending the notice by registered post to, the address referred to in regulation 5 (1) (c);

(b) where the network service provider has provided any facsimile number under regulation 5 (1) (d), by transmitting the notice to the network service provider by facsimile transmission at that facsimile number; or

(c) by transmitting the notice to the network service provider by electronic mail at the electronic mail address referred to in regulation 5 (1) (d).

(2) A notice under section 193DA (2) (b) of the Act shall be furnished to a network service provider within 6 weeks from the date the network service provider notifies the respondent under section 193DA (2) (a) of the Act of the removal of, or the disabling of access to, the electronic copy of the material made available by the respondent.

(3) A notice under section 193DA (2) (b) of the Act shall be in, or substantially in accordance with, Form B in the Schedule, shall be signed by the respondent and shall contain the following:

(a) the name and address of the respondent;

(b) where the respondent is not resident in Singapore, the respondent's address for service in Singapore;

(c) a telephone number, a facsimile number (if any) and an electronic mail address at which the respondent can be contacted;

(d) sufficient particulars to enable the network service provider to identify the electronic copy that has been removed or to which access has been disabled, and the online location of that electronic copy before it was removed or access to it was disabled;

(e) a statement that the respondent, in good faith, believes —

(i) that the electronic copy referred to in sub-paragraph (d) was removed, or access to that electronic copy was disabled, as a result of mistake or misidentification; or

(ii) that the electronic copy referred to in sub-paragraph (d) does not infringe the copyright in any material;

(f) a statement that the respondent submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to the electronic copy referred to in sub-paragraph (d);

(g) a statement that the information in the notice is accurate; and

(h) a statement that the respondent submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to any offence under section 193DD (1) (a) of the Act or any liability under section 193DD (1) (b) of the Act.

Evidence under section 193DC of Act

7.—(1) For the purposes of section 193DC of the Act, the court shall presume, in the absence of evidence to the contrary, that a network service provider has complied with a condition referred to in section 193B (2) or 193C (2) (a) or (c) of the Act if —

(a) the network service provider's documented policies or standard operating procedures contain statements that suggest that the network service provider has complied with that condition; and

(b) the network service provider adduces as evidence those documented policies or standard operating procedures and those statements.

(2) For the purposes of section 193DC of the Act, the court shall presume, in the absence of evidence to the contrary, that a network service provider has complied with a condition referred to in regulation 8 if —

(a) the network service provider's documented terms and conditions for the usage of the network service provider's primary network or services contain statements that suggest that the network service provider has complied with that condition; and

(b) the network service provider adduces as evidence those documented terms and conditions and those statements.

Other prescribed conditions under section 193DE (2) (b) of Act

8.—A network service provider shall not be entitled to rely on section 193B (1), 193C (1) or 193D (1) of the Act unless the network service provider —

(a) has adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of the accounts of users of the network service provider's primary network or services who are repeat infringers; and

(b) accommodates and does not interfere with any standard technical measures accepted in Singapore that —

(i) are used to identify or protect material;

(ii) are developed through an open, voluntary process by a broad consensus of copyright owners and network service providers;

(iii) are available to any person on reasonable and non-discriminatory terms; and

(iv) do not impose substantial costs on network service providers or substantial burdens on their primary networks.

Notice under section 252B (2)(b) or 252C (2) (b) (iii) or (4) (b) (iii) of Act

9.—(1) A notice under section 252B (2) (b) or 252C (2) (b) (iii) or (4) (b) (iii) of the Act shall be furnished to a network service provider —

(a) by leaving the notice at, or sending the notice by registered post to, the address referred to in regulation 5 (1) (c);

(b) where the network service provider has provided any facsimile number under regulation 5 (1) (d), by transmitting the notice to the network service provider by facsimile transmission at that facsimile number; or

(c) by transmitting the notice to the network service provider by electronic mail at the electronic mail address referred to in regulation 5 (1) (d).

(2) A notice under section 252B (2) (b) or 252C (2) (b) (iii) or (4) (b) (iii) of the Act shall be in, or substantially in accordance with, Form C in the Schedule, shall be signed by the complainant and shall contain the following:

(a) the name and address of the complainant;

(b) where the complainant is acting on behalf of a performer, the name and address of the performer;

(c) where the complainant is not resident in Singapore, the complainant's address for service in Singapore;

(d) a telephone number, a facsimile number (if any) and an electronic mail address at which the complainant can be contacted;

(e) sufficient particulars to enable the network service provider to —

(i) identify the performance in respect of which an unauthorised use is alleged to have been made;

(ii) identify and locate the electronic recording alleged to be an unauthorised recording of the performance referred to in sub-paragraph (i), including the online location of that electronic recording; and

(iii) where the notice is a notice under section 252C (4) (b) (iii) of the Act, identify and locate the means by which the network service provider is alleged to have referred or linked a user of any network to the online location of the electronic recording referred to in sub-paragraph (ii);

(f) where the electronic recording referred to in sub-paragraph (e) (ii) is on the network service provider's primary network, a statement that the complainant requires the network service provider to remove or disable access to that electronic recording;

(g) where the electronic recording referred to in sub-paragraph (e) (ii) is on a network other than the network service provider's primary network, a statement that the complainant requires the network service provider to disable access to that electronic recording;

(h) a statement that the complainant, in good faith, believes that the electronic recording referred to in sub-paragraph (e) (ii) is an unauthorised recording of the performance referred to in sub-paragraph (e) (i);

(i) where the notice is a notice under section 252B (2) (b) of the Act, a statement —

(i) that another electronic recording of the performance referred to in sub-paragraph (e) (i) (referred to in this sub-paragraph as the originating electronic recording) was made available on a network (referred to in this sub-paragraph as the originating network);

(ii) that the electronic recording referred to in sub-paragraph (e) (ii) is a cached copy of the originating electronic recording; and

(iii) that —

(A) the originating electronic recording has been removed from the originating network or access to the originating electronic recording on the originating network has been disabled; or

(B) a court has ordered that the originating electronic recording be removed from the originating network or that access to the originating electronic recording on the originating network be disabled;

(j) a statement that the information in the notice is accurate;

(k) a statement that the complainant —

(i) is the performer of the performance referred to in sub-paragraph (e) (i); or

(ii) is authorised to act on behalf of the performer of the performance referred to in sub-paragraph (e) (i); and

(l) a statement that the complainant submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to any offence under section 252CD (1) (a) of the Act or any liability under section 252CD (1) (b) of the Act.

Conditions under section 252B (2) (c) of Act

10.—For the purposes of section 252B (2) (c) of the Act, the prescribed conditions are as follows:

(a) if the electronic recording of the performance is made available online by a person other than the network service provider, and that person has in effect any condition that another person must meet in order to have access to the electronic recording, such as a condition based on payment of a fee or provision of a password or other information, the network service provider shall permit access to the cached copy of the electronic recording on his primary network in significant part —

(i) only to users of the primary network or another network who have met those conditions; and

(ii) only in accordance with those conditions;

(b) the network service provider complies with rules concerning the refreshing, reloading or other updating of the cached copy of the electronic recording as specified by the person making available the electronic recording online in accordance with any generally accepted industry standard data communications protocol for the network through which that person makes the material available, if those rules are not used by that person to unreasonably impair the intermediate storage of the cached copy of the electronic recording; and

(c) the network service provider does not interfere with the ability of technology used at the originating network to obtain information about the use of any electronic recording made available on the originating network, if that technology —

(i) does not significantly interfere with the performance of the network service provider's primary network or the intermediate storage of the cached copy of the electronic recording; and

(ii) is consistent with any relevant industry standards in Singapore.

Notice under section 252CA (2) (b) of Act

11.—(1) A notice under section 252CA (2) (b) of the Act shall be furnished to a network service provider —

(a) by leaving the notice at, or sending the notice by registered post to, the address referred to in regulation 5 (1) (c);

(b) where the network service provider has provided any facsimile number under regulation 5 (1) (d), by transmitting the notice to the network service provider by facsimile transmission at that facsimile number; or

(c) by transmitting the notice to the network service provider by electronic mail at the electronic mail address referred to in regulation 5 (1) (d).

(2) A notice under section 252CA (2) (b) of the Act shall be furnished to a network service provider within 6 weeks from the date the network service provider notifies the respondent under section 252CA (2) (a) of the Act of the removal of, or the disabling of access to, the electronic recording of the performance made available by the respondent.

(3) A notice under section 252CA (2) (b) of the Act shall be in, or substantially in accordance with, Form D in the Schedule, shall be signed by the respondent and shall contain the following:

(a) the name and address of the respondent;

(b) where the respondent is not resident in Singapore, the respondent's address for service in Singapore;

(c) a telephone number, a facsimile number (if any) and an electronic mail address at which the respondent can be contacted;

(d) sufficient particulars to enable the network service provider to identify the electronic recording that has been removed or to which access has been disabled, and the online location of that electronic recording before it was removed or access to it was disabled;

(e) a statement that the respondent, in good faith, believes —

(i) that the electronic recording referred to in sub-paragraph (d) was removed, or access to that electronic recording was disabled, as a result of mistake or misidentification; or

(ii) that the electronic recording referred to in sub-paragraph (d) is not an unauthorised recording of any performance;

(f) a statement that the respondent submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to the electronic recording referred to in sub-paragraph (d);

(g) a statement that the information in the notice is accurate; and

(h) a statement that the respondent submits to the jurisdiction of the courts in Singapore for the purposes of any proceedings relating to any offence under section 252CD (1) (a) of the Act or any liability under section 252CD (1) (b) of the Act.

Evidence under section 252CC of Act

12.—(1) For the purposes of section 252CC of the Act, the court shall presume, in the absence of evidence to the contrary, that a network service provider has complied with a condition referred to in section 252A (2) or 252B (2)(a) or (c) of the Act if —

(a) the network service provider's documented policies or standard operating procedures contain statements that suggest that the network service provider has complied with that condition; and

(b) the network service provider adduces as evidence those documented policies or standard operating procedures and those statements.

(2) For the purposes of section 252CC of the Act, the court shall presume, in the absence of evidence to the contrary, that a network service provider has complied with a condition referred to in regulation 13 if —

(a) the network service provider's documented terms and conditions for the usage of the network service provider's primary network or services contain statements that suggest that the network service provider has complied with that condition; and

(b) the network service provider adduces as evidence those documented terms and conditions and those statements.

Other prescribed conditions under section 252CE (2) (b) of Act

13.—A network service provider shall not be entitled to rely on section 252A (1), 252B (1) or 252C (1) of the Act unless the network service provider —

(a) has adopted and reasonably implemented a policy that provides for the termination in appropriate circumstances of the accounts of users of the network service provider's primary network or services who are repeat infringers; and

(b) accommodates and does not interfere with any standard technical measures accepted in Singapore that —

(i) are used to identify or protect recordings of performances;

(ii) are developed through an open, voluntary process by a broad consensus of performers and network service providers;

(iii) are available to any person on reasonable and non-discriminatory terms; and

(iv) do not impose substantial costs on network service providers or substantial burdens on their primary networks.

THE SCHEDULE

FORM A

FORM B

FORM C

FORM D

[G.N. No. S 220/2005]

Made this 1st day of April 2005.

LIEW HENG SAN Permanent Secretary, Ministry of Law, Singapore.

[LAW 44/004/008 Vol. 3; AG/LEG/SL/63/2003/1 Vol. 3]