Warren Bartholomew Chik

The Google Conundrum: Perpetrator or Facilitator on the Net? - Forging a Fair Copyright Framework of Rights, Liability and Responsibility in Response to Search Engine 2.0, Part II: The Google Books Search Project

Kam Wai, Warren Bartholomew CHIK — Tue, 02 Apr 2013 01:45:35 PDT

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a case study, this paper will look at the two main areas of dispute over the operations of information locator tools and services that either threatens search engine functionality and efficiency or weakens copyright holders’ exclusive rights. It proposes a concerted set of solutions through a reassessment and amendment of copyright law to optimize the social benefits and objectives of both the copyright regime and technological innovations in the electronic model of information archiving, indexing and delivery. A fair distribution of responsibilities and allocation of rights and liabilities will be suggested. In the process, due consideration will be given to both public and private interests, with the former taking precedence; while the recommended solutions will be made within the currently outdated framework for Internet intermediary protection (i.e. safe harbor laws) and exceptions (i.e. specific statutory exemptions and the general fair use defense) under the existing copyright regime. Thus, the proposed changes will be far reaching without being too radical a departure from current law, an evolution that will likely be more acceptable and realistic a solution to the problem.

This paper is published in two parts. Part One of this paper published in the previous edition of the CLSR at [2011] 27 CLSR 110–131 dealt with the challenges to the copyright regime posed by the operations and technology behind the Google Images Search Engine, while Part Two will assess the benefits of the Google Books Search Project visàvis the effects it will have on the scope of copyright protection. Recommendations are made to copyright law to accommodate both functions while generally preserving the main objectives of copyright protection.

Revisiting Authorisation Liability in Copyright Law

Cheng Lim SAW et al. — Tue, 02 Apr 2013 01:45:33 PDT

In this article, the authors revisit the origins and purpose of the law on authorising infringement and propose that the word “authorise” should bear the dictionary meaning of “sanction, approve, countenance”, in lieu of the phrase “grant or purported grant” as adopted in the CBS Songs Ltd v Amstrad Consumer Electronics plc ([1988] AC 1013) decision. The authors will also examine a non-exhaustive list of factors for determining authorisation liability. The suggested approach seeks to expand the scope of indirect copyright liability in Singapore, which is necessary in the face of increasing incursions into the sphere of copyright protection.

Opportunity Lost? Revisiting RecordTV v MediaCorp TV

Kam Wai, Warren Bartholomew CHIK et al. — Thu, 30 Aug 2012 20:30:41 PDT

Taking the Singapore Court of Appeal’s Decision in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2011] 1 SLR 830, this article seeks to argue that the copyright fair dealing defence would have been the more appropriate basis to exempt RecordTV, a digital recording service for recording television programmes, from primary copyright liability. This judicial approach towards legalising digital video recorder (“DVR”) services is more suitable taking into consideration the following: The role and objectives of copyright law in Singapore; the history and development of the fair dealing defence (including the latest amendments pursuant to the US-Singapore Free Trade Agreement); the global trends relating to user rights and information technology through a comparative study of similar cases in other jurisdictions; and a policy assessment of Singapore’s interests in promoting innovation and development against the backdrop of proprietary copyright protection.

Paying it Forward: The Case for a Specific Statutory Limitation on Exclusive Rights for User-Generated Content Under Copyright Law

Kam Wai, Warren Bartholomew CHIK — Thu, 30 Aug 2012 20:30:40 PDT

This article examines user-generated content (“UGC”) and the significance of re-inventions in the context of an increasingly user-centric internet environment and an information sharing society. It will explain the need to provide a statutory limitation in the form of an exception or exemption for socially beneficial UGC on the exclusive rights under copyright law. This will also have the effect of protecting the internet intermediary that hosts and shares UGC. Nascent but abortive attempts have been made by Canada to introduce just such a provision into her copyright legislation, while some principles and rules have also emerged from various interest groups and stakeholders in the attempt of providing a balanced approach towards UGC under the larger scheme of copyright objectives. Customary internet usages and norms relating to UGC will also be examined. These will be evaluated with a view to extracting useful guidelines to construct the parameters of a fair statutory limitation proposed for the legal reform of copyright law.

Where Copyright Law and Technology Once Again Cross Paths – The Continuing Saga: RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd [2011] 1 SLR 830

Cheng Lim SAW et al. — Thu, 30 Aug 2012 20:30:39 PDT

This article critically analyses the issues and reasoning behind the recent Singapore Court of Appeal decision in RecordTV Pte Ltd v Mediacorp TV Singapore Pte Ltd on the legality of digital copying and communications technology under Singapore’s copyright law and offers a different perspective (and some alternative arguments) on the three issues of copying, communication to the public and authorisation of copyright infringement. In particular, we will identify the relevant party to these acts and examine their definitions, based on the current statutory provisions and the history of the development of copyright law vis-à-vis modern technology.

The Google Conundrum: Perpetrator or Facilitator on the Net? - Forging a Fair Copyright Framework of Rights, Liability and Responsibility in Response to Search Engine 2.0, Part I The Google Images Search Engine

Kam Wai, Warren Bartholomew CHIK — Thu, 30 Aug 2012 20:30:38 PDT

Is Google in its quest for search engine optimization through the creation of new technologies, which not only improves its search algorithms but also refines its search functions for users, doing it in a manner that makes it a perpetrator of primary copyright infringement or an invaluable facilitator for Internet functionality? How should the balance of interests in the treatment of creative works be recalibrated in the face of changes in search engine technology and operations, and the disputes that have arisen within the last decade in the context of the digital age and its needs? Using Google as a case study, this paper will look at the two main areas of dispute over the operations of information locator tools and services that either threatens search engine functionality and efficiency or weakens copyright holders exclusive rights. It proposes a concerted set of solutions through a reassessment and amendment of copyright law to optimize the social benefits and objectives of both the copyright regime and technological innovations in the electronic model of information archiving, indexing and delivery. A fair distribution of responsibilities and allocation of rights and liabilities will be suggested. In the process, due consideration will be given to both public and private interests, with the former taking precedence; while the recommended solutions will be made within the currently outdated framework for Internet intermediary protection (i.e. safe harbor laws) and exceptions (i.e. specific statutory exemptions and the general fair use defense) under the existing copyright regime. Thus, the proposed changes will be far reaching without being too radical a departure from current law, an evolution that will likely be more acceptable and realistic a solution to the problem. This paper is published in two parts. Part One of this paper will deal with the challenges to the copyright regime posed by the operations and technology behind the Google Images Search Engine, while Part Two that will be published in the subsequent edition of the CLSR will assess the benefits of the Google Books Search Project vis vis the effects it will have on the scope of copyright protection. Recommendations are made to copyright law to accommodate both functions while generally preserving the main objectives of copyright protection. © 2011 Hogan Lovells. Published by Elsevier Ltd. All rights reserved.

Information Technology Law

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:18:13 PST

Challenges to Criminal Law Making in the New Global Information Society: A Critical Comparative Study of the Adequacies of Computer-Related Criminal Legislation in the United States, the United Kingdom and Singapore

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:18:10 PST

Better a Sword Than a Shield: The Case for Statutory Fair Dealing/Use Right as Opposed to a Defence in the Light of the Disenfranchising Effect of Digital Rights Management and Anti-Circumvention Laws

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:18:08 PST

This paper endorses a reinvention of the general and flexible fair use doctrine through the simple powerful elevation of its legal status from a legal exception to that of a legal right, and identifies all the benefits that a fair use right entails.

Customary Internet-Ional Law: Creating a Body of Customary Law for Cyberspace

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:18:05 PST

The shift in socio-economic transactions from realspace to cyberspace through the emergence of electronic communications and digital formats has led to a disjuncture between the law and practices relating to electronic transactions. The speed at which information technology has developed require a faster, more reactive and automatic response from the law that is not currently met by the existing law-making framework. This paper suggests the development of special rules to enable Internet custom to form legal norms to fulfill this objective. In Part 1, I will describe the socio-economic problems and stresses that electronic transactions place on existing policy and law-making mechanisms; examine the history of custom as a source of law in various contexts and identify potential sources of Internet Law in particular the suitability of customary international law rules as a template for formulating customary Internet law-making rules. In Part 2, I will construct the customary rules to Internet law-making that are applicable to electronic transactions by adapting customary international law rules; apply the suggested rules for determining customary Internet norms and identify some existing practices that may amount to established norms on the Internet, specifically practices relating to the Internet Infrastructure and Electronic Contracting.

Bloggers Beware – the Five Commandments for Bloggers

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:18:03 PST

Singapore and International Law

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:18:01 PST

Brief Notes: Recent International Legal Developments in Singapore

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:18:00 PST

The Case for Sports Law Arbitration and Practice in Singapore

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:17:58 PST

The Lion, the Dragon and the Wardrobe Guarding the Doorway to Information and Communications Privacy on the Internet: A Comparative Case Study of Hong Kong and Singapore - Two Differing Asian Approaches

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:17:56 PST

Almost a decade ago, the electronic commerce revolution began, led by such companies as Amazon.com and Ebay.com. These companies have grown into the internet business giants they are today, diversifying in the products they sell, the services they provide and the jurisdictions they conduct business in. However, aside from these rare examples, most medium and small internet-based business enterprises have grown with the dot.com bubble and dissolved when it burst mid-way through the decade. Now, at the 10th Anniversary of Electronic Commerce, after we have seen the dot.com way of doing business launch like a rocket and plunge like a comet, subsequently emerging into a more cautious, but no less potential, avenue of doing business, other challenges now face the industry as a whole to retain and obtain customers. Internet users are becoming increasingly wary of online transactions. 2 The irony is that as internet users become technologically savvy, they also become more aware of the dangers which connectivity entails and this inhibits their online behaviour. Chief among these concerns, and second only to cybercrimes, is the maintenance of privacy in the context of the protection of personal information, particularly from the unsavory elements trawling the cyberworld. For cyber-trade and the e-commerce market to grow, and for the continued efficiency and utility of the internet for G2C and B2C transactions, 3 governments and industries must re-instill the trust and confidence of internet users both in commercial and non-commercial interaction. 4

Book Review: Arbitration in China - a Practical Guide

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:17:55 PST

Lord of Your Domain, but Master of None: The Need to Harmonize and Recalibrate the Domain Name Regime of Ownership and Control

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:17:52 PST

The world has seen three waves of property. The first hark back centuries and relate to 'real and personal property' such as land and chattel, also known as immovable and movable property. The second gained recognition around the nineteenth century and relates to propertization of the 'labours of the mind' or 'intellectual property'. The third wave came within a much shorter period and starting to gain recognition and it is what is known as 'virtual property'. The law and policy-makers have had to surmount not only a steep learning curve but also in some cases a foundation that is wrought with mistakes when it comes to the treatment that should be given to virtual property. The Domain Name System (DNS) is the best example of a form of virtual property that has given rise to challenges in law making and administration. The 'land grab' of domain names in the World Wide Web (WWW) have given rise to a virtual tsunami of registrations and this has led to the subsequent erection of levees in the form of a challenge regime. This paper will identify and consider the problems that the DNS is facing and suggest the changes that have to be made to it in order for it to withstand the forces of what will be an increasingly rising sea of domain names on the WWW. This paper will begin with a look at the fissures in the seabed of the DNS by comparing how the management and policies relating to domain name registration and challenge have shifted and diverged in different jurisdictions as well as by examining the inadequacies of the original registration regime (ICANN) and challenge policy (UDRP). After identifying the problem, suggestions will be made to resolve them in the best possible way, which require a revisit of the stakeholder and policy interests in the Internet and the ownership and control of domain names that essentially function as an important gateway to the WWW in order to rebalance these interests in an attempt to achieve greatest equilibrium. Amendments will be proposed to both the registration and challenge regimes as well as to the structure and hierarchy of domain name administration which should be a globally coordinated effort just as the DNS is a common entryway to the global property that is the WWW.

Proposed Anti-Spam Legislation Model in Singapore - Are We Losing the War before Even Starting the Battle?

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:17:49 PST

Harassment through Digital Media: A Cross-Jurisdictional Comparative Analysis on the Law on Cyberstalking

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:17:47 PST

The cyber world is an extension of the real world. It is another dimension where we can work, study and play. But people also tend to lose their inhibitions on the Internet, often while keeping their anonymity. Because of the perceived and real freedoms in the digital environment, people are emboldened to act in ways that they may not normally do in the real world. One recent phenomenon that is steadily becoming a problem in every country with a high level of electronic connectivity is the act of cyberstalking. The electronic medium is an important factor due to its very nature such as low cost and ease of use, potential anonymity and stealth as well as the insignificance of physical distance to the act of cyberstalking. Hence, cyberspace affords lesser impediments to aggressive behaviour. The borderless nature of electronic communications medium, concomitant jurisdictional concerns and the unique challenges posed to computer forensics such as the collection of evidence and investigations also arise as relevant issues in this context. Cyberstalking has become a concern that has translated into law in larger and more technologically-matured jurisdictions such as the United States, the United Kingdom, Canada, Australia, Japan and even in a small country like Singapore. Existing laws relating to harassment or intimidation are often fact- or relationship- specific and are inadequate to meet the needs of modern society, while nascent cyberstalking laws are substantively disparate. I will first use Singapore as a case study and backdrop by presenting the factual experience and judicial developments in Singapore relating to cyberstalking and identify some of the usual problems in its treatment under law. I will then analyse and compare the cyberstalking laws of several key jurisdictions to determine the common elements and treatment amongst them with a view to the formulation of a proposed statutory solution that will take into consideration the different rights and interests of members of society in the use of digital media for social interaction. I will also briefly consider the issues of prescriptive, adjudicatory and enforcement jurisdiction and the need for greater international cooperation to deal with the problem through the harmonisation of substantive laws, the coordination in procedural investigative measures and complementary recognition and enforcement laws.

‘Customary Internet-Ional Law’: Creating a Body of Customary Law for Cyberspace. Part Ii: Applying Custom as Law to the Internet Infrastructure

Kam Wai, Warren Bartholomew Chik — Mon, 30 Jan 2012 22:17:45 PST

The shift in socio-economic transactions from real space to cyberspace through the emergence of electronic communications and digital formats has led to a disjuncture between the law and practices relating to electronic transactions. The speed at which information technology has developed require a faster, more reactive and automatic response from the law that is not currently met by the existing law-making framework. This paper suggests the development of special rules to enable Internet custom to form legal norms to fulfill this objective. In Part 2 of this article, I will construct the customary rules to Internet law-making that are applicable to electronic transactions by adapting customary international law rules; apply the suggested rules for determining customary Internet norms and identify some existing practices that may amount to established norms on the Internet, specifically practices relating to the Internet Infrastructure and Electronic Contracting.