How to Use Images on Your Website Without Violating Singapore’s Copyright Laws

Most of us have heard the old adage that an image is worth a thousand words. In the world of the Internet, this saying has never been truer.

An attractive website or blog has a nifty and unique design, usually coupled with extensive use of images and photographs. However, every time we use images, designs and photographs that are not our own, we run the risk of violating Singapore’s copyright laws.

Yet, we require these images, designs and photographs to have a website or blog that would attract Internet traffic. Is there a way around this dilemma?

What is Protected by Singapore’s Copyright Laws?

The Copyright Act (CA) and its subsidiary legislation regulate and govern the copyright regime in Singapore. The CA protects a wide variety of subject matter which includes literary, dramatic, musical and artistic works.

Digital images, designs and photographs are considered artistic works. This is even if these works do not have much artistic merit and/or are in a digital medium.

Rather, so long as the artistic work is original, expressed in a tangible form and the author is a Singapore citizen or resident, then that work is automatically protected by the CA. No copyright registration is required. The work will also be protected by the CA even if the work does not contain the © sign.

According to section 26(1)(b) of the CA, the copyright owner of the artistic work will then have the exclusive rights to:

• Reproduce the work in a material form

• (If the work is unpublished) Publish the work in Singapore or any country to which the CA applies

• Communicate the work to the public

Copyright is usually only protected within a particular territory (i.e. Singapore). However, due to certain international agreements like the Berne Convention and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), works created by a Singapore citizen or resident are protected in countries which have also signed these agreements and vice versa.

So, just because the digital images, designs and photographs are created outside Singapore, it does not mean that they will not be protected by copyright.

Why Could Using Others’ Images on Your Website Constitute Copyright Infringement?

When you use an image, design or photograph in your website or blog, you are both making a copy of a copyrighted work, as well as communicating it to the public. You would therefore be exercising rights exclusively owned by the copyright owner, as mentioned above.

According to section 31(1) of the CA, any person who exercises any one of the rights in a copyright without proper authorisation from the copyright owner would be considered to be infringing the copyright in a work.

Under the CA, if you infringe copyright, you can be liable for both civil and criminal penalties.

• For civil sanctions under section 119 of the CA, the court may order you to pay compensation to the copyright owner in the form of damages and/or to take down all infringing materials.

• You can also be charged with the criminal offence of wilful infringement under section 136(3A) of the CA. If you are found guilty, you can be fined up to $20,000 and/or jailed up 6 months.

So how then do you use images owned by others on your website or blog without violating Singapore’s copyright laws? This article will discuss the following methods:

• Get Permission from the Image’s Copyright Owner

• Use Images in the Public Domain

• Check the Image’s Terms of Use

• Use Creative Commons-Licenced Images

• Use Stock Images

• Claim the Fair Dealing Defence to Copyright Infringement

Get Permission from the Image’s Copyright Owner

Since using an image without permission from its copyright owner would constitute copyright infringement, you could avoid copyright infringement by simply obtaining permission from the owner to use the image on your website or blog.

While it is presumed in copyright law that the person who created the work (i.e. the author) is also the exclusive owner of the copyright in that work, the author and the copyright owner can be different entities in some situations.

These situations could be where:

1. The artistic work was created by an employee as part of his employment. Although the employee is the author of the work, the employer will own the copyright in the work.

2. The artistic work was created by an employee of a newspaper, magazine or periodical creates as part his employment. The proprietor of the newspaper, magazine or periodical would then own the copyright in respect of the work’s publication in any newspaper, magazine or periodical. (However, the employee will own the remaining rights in the work.)

3. The author was commissioned to produce a portrait, photograph or engraving. The copyright in that work will belong to the commissioner.

4. The author has contractually agreed to partially or wholly assign or licence his copyright in the artistic work to another entity.

It is important to know who is the copyright owner of a particular right of a particular work. Only the copyright owner of that particular right will have the legal authority to give you the permission to exercise that right.

The copyright owner must give you the consent to use the work for a particular purpose. Merely acknowledging the copyright owner in your website or blog is not sufficient to avoid copyright infringement.

There are 2 main ways of getting consent from a copyright owner:

1. Reach out to the copyright owner directly and obtain consent.

2. Approach collecting societies which are organisations (usually non-profit ones) that can grant consent for use of the works of its members under specific conditions. Unfortunately, Singapore does not have a collecting society for digital images, designs, artworks and photographs at this point in time. You will therefore have to approach the copyright owner directly.

Please note that just because a copyright owner or an author is hard to find does not mean that the work has NO author or owner.

Use Images in the Public Domain

The Internet is a huge place and sometimes it is impossible to track down copyright owners to request for permission to use their works. In this situation, you can consider using images in the public domain. You do not need the permission of these images’ copyright owners to use the images.

Under the CA, the copyright in a photograph will last for 70 years after the expiration of the calendar year in which the photograph is first published. Copyright protection for all other artistic works will last for the duration of the author’s life + 70 years after the date he/she dies. Once copyright protection for the work has expired, then the work will be considered to be in the public domain.

Images may also pass into the public domain if their copyright owners have waived their copyrights in the images. However, you should check to what extent the copyright has been waived (i.e. whether the copyright owner still retains some rights for himself, or has waived all of them), and so whether you will be able to use these images without incurring civil or criminal liability.

You can use Google Advanced Image Search to search for such public domain images as explained here. Please note that even if you adjust your search options to only search for free-to-use images, you must still verify if that image is really free to use before using it.

Check the Image’s Terms of Use

By virtue of the length of copyright protection, images in the public domain may be old. These images therefore may not be suitable if you need images which depict more recent things or events. What then can you do if you want to use an image from a website but are unable to get consent from its copyright owner?

Try checking the image’s Terms of Use. Most websites, image-hosting websites or commercial blogs have a “Terms of Use” page that sets out in detail how a user can use the website. On the Terms of Use page, you can find out if you are allowed to reproduce the images, designs or photographs and if so, the purposes you can only use it for and the extent of use.

If the website’s Terms of Use page allows you to use the website’s images, designs and photographs in a certain way, you will not need consent from the copyright owners of these images, designs and photographs to use them in that way.

However, such Terms of Use pages may not be reader-friendly and/or contain lots of legal jargon which can be confusing for the average Internet user.

Use Creative Commons-Licenced Images

Alternatively, you can also look out for websites that offer images with Creative Commons Licences (CCL). You can search for these images on the Creative Commons website or use Google Advanced Search to indicate that you are searching for images, designs and photographs that have a CCL attached.

There are 6 main CCLs and all of them automatically grant you the basic rights such as the right to distribute the copyrighted work worldwide for non-commercial purposes, and without modification. Any images, designs or photographs that have a CCL attached to them can be used on your own website or blog without fear of copyright infringement as long as you abide by the conditions found in that particular CCL.

As of the latest version, all CCLs are global licenses that are applicable to most jurisdictions, including Singapore.

Since 2004, all CCLs require that the original author of the work to be credited when the work is used. For further details on CCLs, please visit the Creative Commons FAQ here.

Use Stock Images

Apart from searching websites that offer images with CCLs, try also searching websites that provide “stock” images, designs and photographs.

There are 3 kinds of “stock” images, namely:

1. Royalty-free images: You pay a one-time licence fee to the licensor of the image to be granted the right to use the image for whatever purpose, for how many times you like and for however long you want. The only problem is that this is not an exclusive licence and someone else can use the same image somewhere else as you if they have paid the licence fee too.

2. Rights-managed images: You pay a licence fee for a 1-time usage of the image, where the usage is restricted to purposes allowed by the licence and duration of use. Any further use requires further payment.

3. Public domain images: As mentioned above, images in the public domain are free to use, either because the copyright protection has expired or been waived by the copyright owners. No consent from the images’ copyright owners is required and no payments are needed to use these images.

Claim the Fair Dealing Defence to Copyright Infringement

The main legal defence against a claim of copyright infringement is the “fair dealing” defence under section 35 of the CA. This means that you can use images, designs and photographs on your website or blog without incurring liability if the fair dealing exception applies in your case.

Please note that Singapore’s fair dealing defence does not work the same way as the “fair use” defence to copyright infringement in the United States.

Section 35(2) of the CA contain the general factors that the court will consider when deciding if the fair dealing defence applies. These factors are:

1. The purpose and character of the dealing, including whether the dealing is of a commercial nature or for non-profit educational purposes. The fact that you are reproducing the images on your website or blog for commercial purposes will weigh against a finding of fair dealing.

2. The nature of the work or adaptation. A finding of fair dealing is less likely in cases involving fiction-based copyright works (as opposed to fact-based ones).

3. The amount and substantiality of the part copied, in relation to the whole work or adaptation.

4. The effect of the dealing on the potential market for, or value of, the work or adaptation.

5. The possibility of obtaining the work or adaptation within a reasonable time at an ordinary commercial price. A finding of fair dealing is less likely if you could have obtained the work on reasonable commercial terms by making reasonable investigations into the possibility of obtaining the work on such terms and, if it was possible to obtain the work on such terms, whether you had attempted to obtain it in that way.

Apart from these general factors, there are other specific scenarios where the fair dealing defence will apply, such as where there was:

1. Fair dealing for purpose of criticism or review, and where sufficient acknowledgement of the work is made (section 36 of the CA)

2. Fair dealing for purpose of reporting current events in a newspaper, magazine or similar periodical, and a sufficient acknowledgment of the work is made (section 37 of the CA)

3. Reproduction of the work for purposes of judicial proceedings or professional legal advice (section 38 of the CA)

Be careful when relying on the fair dealing defence to use images, designs and photographs on your website or blog without the consent of their copyright owners. While you may think you fall within the scope of the defence, you may still be sued for copyright infringement if the copyright owner does not agree.

If this is the case, you may then have to justify in court why you are entitled to rely on the fair dealing defence, and this may cost you a lot of time and money in legal fees. Use the fair dealing defence at your own risk.

Finally, Consider Using Your Own Images, Designs and Photographs

Ultimately, the best way to avoid any copyright infringement is to use your own images, designs or photographs in your website or blog.

You will be the author and copyright owner of any photographs that you take, or images you create, and you can use them in any way you see fit.

Remember that while a picture is worth a thousand words, it is definitely not worth being sued or jailed over.

The post How to Use Images on Your Website Without Violating Singapore’s Copyright Laws appeared first on SingaporeLegalAdvice.com.