Restriction of remedies if conditions met
315.—(1) The purpose of this Subdivision is to restrict the remedies available against a NCP or NSP for rights infringements arising from their activities, but only if certain conditions are met.
(2) If a NCP commits a rights infringement to which section 316 (transmission, routing and providing connections) applies and satisfies the conditions for that section —(a)
the Court may only grant either or both of the following remedies against the NCP in respect of the rights infringement:(i)
an order requiring the NCP to take reasonable steps to disable access to an online location that is physically situated outside Singapore;
(ii)
an order requiring the NCP to terminate a specified account; and
(b)
to avoid doubt, the Court must not grant any other remedy (including a monetary remedy) against the NCP in respect of the rights infringement.
(3) If a NSP commits a rights infringement to which section 317, 318 or 319 (system caching, storage, and locating information) applies and satisfies the conditions for the applicable section —(a)
the Court may only grant one or more of the following remedies against the NSP in respect of the rights infringement:(i)
an order requiring the NSP to —(A)
remove an electronic copy (being an infringing copy) from the NSP’s primary network; or
(B)
disable access to an electronic copy (being an infringing copy) on the primary network or another network;
(ii)
an order requiring the NSP to terminate a specified account;
(iii)
if necessary, some other less burdensome but comparatively effective non‑monetary order; and
(b)
to avoid doubt, the Court must not grant any remedy (including a monetary remedy) against the NSP in respect of the rights infringement.
(4) In deciding whether to make an order under subsection (2)(a) or (3)(a), and what order to make, the Court must consider all relevant matters, including —(a)
the harm that is or may foreseeably be caused to the claimant;
(b)
the burden that the making of the order will place on the NCP or NSP;
(c)
the technical feasibility of complying with the order;
(d)
the effectiveness of the order;
(e)
any possible adverse effect on the business or operations of the NCP or NSP; and
(f)
whether some other comparably effective order would be less burdensome.
(5) In this section, “monetary remedy” means damages, an account of profits or statutory damages.
Conditions relating to infringement by transmission, routing or providing connections
316.—(1) This section applies where a NCP commits a rights infringement by —(a)
transmitting or routing, or providing connections for, an electronic copy through the NCP’s primary network; or
(b)
any temporary storage of an electronic copy in the course of doing an act under paragraph (a).
(2) The conditions for this section are —(a)
in the case of a transmission of an electronic copy — the transmission is not initiated by or at the direction of the NCP;
(b)
the act constituting the rights infringement is carried out through an automatic technical process and the NCP does not select the electronic copy;
(c)
the NCP does not select the recipients of the electronic copy except as an automatic response to a request by another person;
(d)
the NCP does not substantively modify the content of the electronic copy (apart from any modification made as part of a technical process) when the electronic copy is transmitted through the NCP’s primary network; and
(e)
any condition as may be prescribed.
Conditions relating to infringement by system caching
317.—(1) This section applies where a NSP commits a rights infringement by making an electronic copy (called in this section the cached copy) —(a)
on the NSP’s primary network;
(b)
from another electronic copy that is available on a network (called in this section the originating network);
(c)
through an automatic process;
(d)
in response to an action by a user of the NSP’s primary network; and
(e)
to facilitate efficient access to the underlying work or protected performance (as the case may be) by that user or other users.
(2) The conditions for this section are —(a)
the NSP does not substantively modify the content of the cached copy (apart from any modification made as part of a technical process) when the cached copy is transmitted to users of the NSP’s primary network or another network;
(b)
if the NSP is served with a take‑down notice that purports to be given by or on behalf of the rights owner of the cached copy — the NSP expeditiously takes reasonable steps to remove or disable access to the cached copy on its primary network; and
(c)
any condition as may be prescribed, including conditions relating to —(i)
access to the cached copy by users of the NSP’s primary network or of another network;
(ii)
refreshing, reloading or updating the cached copy; or
(iii)
non‑interference with technology used at the originating network to obtain information about the use of any electronic copies on the originating network, being technology that is consistent with industry standards in Singapore.
Conditions relating to infringement by storage
318.—(1) This section applies where a NSP commits a rights infringement by storing an electronic copy on its primary network (called in this section the stored copy) at the direction of a user of that network.
(2) The conditions for this section are —(a)
if the NSP has the right and the ability to control any rights infringements in relation to the stored copy — the NSP does not receive any financial benefit that is directly attributable to any of those rights infringements;
(b)
if —(i)
the NSP knows that rights infringements have been committed in relation to the stored copy;
(ii)
the NSP knows about facts or circumstances that would inevitably lead to the conclusion that rights infringements have been committed in relation to the stored copy; or
(iii)
the NSP is served with a take‑down notice that purports to be given by or on behalf of the rights owner of the stored copy,
the NSP expeditiously takes reasonable steps to remove or disable access to the stored copy;
(c)
the NSP has —(i)
designated a representative to receive take‑down notices under paragraph (b)(iii); and
(ii)
published, in the prescribed manner, the prescribed information about the designated representative; and
(d)
any condition as may be prescribed.
(3) In deciding whether a financial benefit is directly attributable to a rights infringement for the purposes of subsection (2)(a), all relevant matters must be considered, including —(a)
industry practice in relation to the charging for services by NSPs; and
(b)
whether the financial benefit is greater than the benefit that would usually result from charging in accordance with accepted industry practices.
(4) In deciding whether a NSP knows about the matters in subsection (2)(b)(i) or (ii), the following notices must be ignored:(a)
a notice that purports to be given by or on behalf of the rights owner of the stored copy (other than a take‑down notice under subsection (2)(b)(iii));
(b)
a notice by the rights owner of the stored copy under section 326(2)(b) (intention to apply for access disabling order).
Conditions relating to infringement by locating information
319.—(1) This section applies where —(a)
an electronic copy (called in this section the main copy) is made available on an online location on a network (called in this section the originating network);
(b)
the NSP commits a rights infringement by referring or linking a user of any network to the online location; and
(c)
the referring or linking is done by using —(i)
an information location tool (for example, a hyperlink or directory); or
(ii)
an information location service (for example, a search engine).
(2) The conditions for this section are —(a)
if the NSP has the right and the ability to control any rights infringement in relation to the main copy — the NSP does not receive any financial benefit that is directly attributable to any of those rights infringements;
(b)
if —(i)
the NSP knows that rights infringements have been committed in relation to the main copy;
(ii)
the NSP knows about facts or circumstances that would inevitably lead to the conclusion that rights infringements have been committed in relation to the main copy; or
(iii)
the NSP is served with a take‑down notice that purports to be given by or on behalf of the rights owner of the main copy,
the NSP expeditiously takes reasonable steps to remove or disable access to —
(iv)
the main copy; and
(v)
any further electronic copies made from the main copy and made available on the NSP’s primary network, but only if the NSP knows about those further copies;
(c)
the NSP has —(i)
designated a representative to receive take‑down notices under paragraph (b)(iii); and
(ii)
published, in the prescribed manner, the prescribed information about the designated representative; and
(d)
any condition as may be prescribed.
(3) In deciding whether a financial benefit is directly attributable to a rights infringement for the purposes of subsection (2)(a), all relevant matters must be considered, including —(a)
industry practice in relation to the charging for services by NSPs; and
(b)
whether the financial benefit is greater than the benefit that would usually result from charging in accordance with accepted industry practices.
(4) In deciding whether a NSP knows about the matters in subsection (2)(b)(i) or (ii), the following notices must be ignored:(a)
a notice that purports to be given by or on behalf of the rights owner of the main copy (other than a take‑down notice under subsection (2)(b)(iii));
(b)
a notice by the rights owner of the main copy under section 326(2)(b) (intention to apply for access disabling order).
Conditions do not require monitoring of network services, etc.
320.—(1) The application of sections 315, 316, 317, 318 and 319 does not depend on —(a)
a NSP monitoring its service or affirmatively seeking facts indicating a rights infringement, except to the extent consistent with any standard technical measure; or
(b)
a NSP taking any action to gain access to, remove or disable access to any electronic copy in any case where the action is prohibited by law.
(2) In this section, “standard technical measure” means any technical measure accepted in Singapore that —(a)
is used to identify or protect copyright works, protected performances, or recordings of protected performances;
(b)
has been developed through an open, voluntary process by a broad consensus of rights owners and NSPs;
(c)
is available to any person on reasonable and non‑discriminatory terms; and
(d)
does not impose substantial costs on NSPs or substantial burdens on their primary networks.
Evidence of compliance with conditions
321.—(1) In proceedings relating to this Subdivision, a NSP may produce evidence —(a)
that is prescribed; and
(b)
that suggests that the NSP complied with any condition mentioned in section 316, 317, 318 or 319.
(2) If a NSP produces the evidence mentioned in subsection (1), the NSP is presumed, unless the contrary is proved, to have complied with the relevant condition.
Protection against liability for removing or disabling access to electronic copy under section 317, 318 or 319
322.—(1) If subsection (2), (3) or (4) applies, a NSP is not, despite any contrary written law or rule of law, liable under any rule of law for acting to —(a)
remove an electronic copy from its primary network; or
(b)
disable access to an electronic copy on its primary network or another network.
(2) This subsection applies if —(a)
the NSP acted —(i)
in good faith; and
(ii)
in reliance on a take‑down notice under section 317(2)(b) (system caching); and
(b)
any prescribed condition is met.
(3) This subsection applies if —(a)
the NSP acted —(i)
in good faith; and
(ii)
in reliance on a take‑down notice served by a person (X) under section 318(2)(b)(iii) or 319(2)(b)(iii) (storage or locating information);
(b)
the NSP expeditiously takes reasonable steps to —(i)
notify the person (Y) who made the electronic copy available on the relevant network of the removal or disabling; and
(ii)
provide Y with a copy of the take‑down notice;
(c)
the NSP takes the following steps if the NSP is served with a restoration notice within the prescribed time by a person purporting to be or to be acting on behalf of Y:(i)
subject to any written law on privacy or data protection, the NSP expeditiously provides a copy of the restoration notice to X;
(ii)
the NSP expeditiously notifies X, stating that the NSP will take reasonable steps to restore the electronic copy or access to the electronic copy, but only if —(A)
the restoration is technically and practically feasible; and
(B)
within 10 working days after the notification —(BA)
no proceedings are brought by or on behalf of the rights owner of the electronic copy to prevent the restoration; or
(BB)
the NSP is not informed in writing of the proceedings;
(d)
the NSP takes reasonable steps to restore the electronic copy, or to restore access to the electronic copy, if the conditions in paragraph (c)(ii) are met;
(e)
the steps mentioned in paragraph (d) are taken (if they have to be taken) not less than 10 and not more than 14 working days after the date of the notification in paragraph (c)(ii); and
(f)
any prescribed condition is met.
(4) This subsection applies if —(a)
the NSP acted —(i)
in good faith; and
(ii)
in reliance on the knowledge mentioned in section 318(2)(b)(i) or (ii) or 319(2)(b)(i) or (ii) (storage or locating information);
(b)
the NSP expeditiously takes reasonable steps to notify the person (Y) who made the electronic copy available on the relevant network of the removal or disabling;
(c)
the NSP takes reasonable steps to restore the electronic copy or access to the electronic copy, but only if —(i)
the NSP is served with a restoration notice within the prescribed time by a person purporting to be or to be acting on behalf of Y;
(ii)
within 10 working days after the date on which the restoration notice is served on the NSP —(A)
no proceedings are brought by or on behalf of the rights owner of the electronic copy to prevent the restoration; or
(B)
the NSP is not informed in writing of the proceedings; and
(iii)
the restoration is technically and practically feasible;
(d)
the steps mentioned in paragraph (c) are taken (if they have to be taken) not less than 10 and not more than 14 working days after the date on which the restoration notice is served on the NSP; and
(e)
any prescribed condition is met.
(5) Subsections (1), (2), (3) and (4) apply whether or not it is ultimately decided that the NSP committed a rights infringement mentioned in section 317(1), 318(1) or 319(1).
(6) Despite anything to the contrary in any written law or rule of law, a NSP is not liable under any rule of law if —(a)
the NSP acts in good faith to —(i)
restore an electronic copy to the NSP’s primary network; or
(ii)
restore access to an electronic copy on any network; and
(b)
the restoration was done in reliance on a restoration notice under subsection (3)(c) or (4)(c)(i).
(7) A NSP must not be treated as authorising an act that is a rights infringement just because one (but not more) of the following circumstances applies:(a)
the NSP provides a facility that is used by another person to do that act;
(b)
the NSP is served with a take‑down notice under section 317(2)(b), 318(2)(b)(iii) or 319(2)(b)(iii) (system caching, storage or locating information), or a notice under section 326(2)(b) (intention to apply for access disabling order), in respect of that act;
(c)
the NSP has the knowledge mentioned in section 318(2)(b)(i) or (ii) or 319(2)(b)(i) or (ii) (storage or locating information) in respect of that act.
Requirements relating to take‑down or restoration notices, etc.
323. A take‑down notice under section 317(2)(b), 318(2)(b)(iii) or 319(2)(b)(iii) or a restoration notice under section 322(3)(c) or (4)(c)(i) must —(a)
be served in the prescribed manner;
(b)
be in or substantially in the prescribed form; and
(c)
state the prescribed matters.
Making false statements in take‑down or restoration notice
324.—(1) In making a take‑down notice under section 317(2)(b), 318(2)(b)(iii) or 319(2)(b)(iii) or a restoration notice under section 322(3)(c) or (4)(c)(i), a person must not make a false statement (whether in or outside Singapore) that —(a)
the person knows is false or does not believe is true; and
(b)
touches a point material to the object of the notice.
(2) A person who contravenes subsection (1) —(a)
shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 2 years or to both; and
(b)
shall be liable in damages to any person who suffers any loss or damage as a result of making that notice, but only to the extent that the loss or damage is reasonably foreseeable as a likely result of making that notice.
(3) If a person makes a statement outside Singapore in contravention of subsection (1), the person may be dealt with under subsection (2)(a) as if the statement were made in Singapore.
(4) Regulations may prescribe how a person may verify statements made in the notices mentioned in subsection (1), and the consequences of performing or not performing the prescribed verification.
Source: Singapore Statutes Online (Attorney-General's Chambers), © Government of Singapore.
