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LAW 641 ASIAN AND GLOBAL TRENDS IN INFOCOMM LAW - Take Home Assignment Question

TERM 1 AY 2021-22

TAKE HOME ASSIGNMENT

11 November 2021 1pm-4pm

INSTRUCTIONS TO CANDIDATES

1. The time for this home assignment is THREE (3) hours. Save your document with your Student ID number as the title in word doc or pdf. E-mail your answers to warrenchik@smu.edu.sg upon completion no later than 4pm.

2. Apply only SINGAPORE law and regulations to the below question.

QUESTION (100%)

Alan (“A”) works as a senior financial advisor with a local Bank. He is also a Member of Parliament in Singapore (‘MP’). Alan’s wife Bonnie (“B”) often borrows his phone to watch Netflix movies and he shared his password to unlock his smart phone with her solely for that purpose. One day, out of curiosity, she activated his text messages and saw some flirtatious chats between Alan and his colleague Clara (“C”). Bonnie was so angry that she took screenshots of the messages and forwarded all the chats to the A and C’s colleagues in A’s e-mail contact list (using his unsecured e-mail app) to shame the two. She also posted it on her public Instagram (“IG”)account (a social account) with the corporate photos of Alan and Clara - that she took a screenshot of from the Corporate profile on their Company’s website - with the caption “Dirty Lying Adulterers, please “like and share” and shame them. Furthermore, she posted Alan and Clara’s mobile numbers and work e-mail addresses along with these posts.

Bonnie’s actions generated a lot of abusive comments and personal attacks against both Alan and Clara on their publicly available IG and accounts. There were also comments from some followers in all three of their IG accounts calling for Alan to step down as an MP as his actions and character are unsuitable for him to hold such a position. Alan felt maligned as he never actually cheated on his wife (but merely flirted via text with Clara. Clara was so badly affected - by receiving so many abusive phone calls, text messages and e-mails - that she had to take a leave of absence to hide at home. Alan is now estranged from Bonnie and is very angry at her.

Advice Alan and Clara on their legal recourse (both civil and criminal) (a) against Bonnie, (b) to prevent the further dissemination of the posts (and accusations of adultery) and (c) how they can stop the abuse from continuing. In your advice on (b), consider if POFMA is relevant.

- END OF QUESTION PAPER -

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https://www.elitigation.sg/gd/s/2021_SGCA_96

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Session 10. Exam Briefing (make up class on 30 Oct @3.30pm)

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NOTE: THIS SEMINAR WILL BE GIVEN IN WEEK 11, 30 October 3.30pm-5.00pm (make up lesson for 4 November) after the EXAM BRIEFING. This topic will NOT be included for the exams.

This is the updated link for the Domain Name Policy, Rules and Cases: https://www.mediation.com.sg/our-services/overview-of-services/singapore-domain-name-dispute-resolution-policy-service/

Session 9 - The Domain Name Regime

READ: ICTL TEXTBOOK CHAPTER 7

The Domain Name Regime: These days, with the popularity of the Internet as a marketing platform (e.g. viral marketing campaigns), the acquisition and use of a domain name for a movie or an entertainment company is important. Globally, the administration of generic top level (gTLD) domain names is done by ICANN, which has itself evolved since its inception into a global agency catering to international interests. In individual countries, there is also an organization that handles the country-coded top level (ccTLD) domain name. In Singapore, the SGNIC was set up by the then IDA in 1995 to administer Internet domain names that end with .sg in Singapore. SGNIC has since launched Chinese domain names in Singapore in 2009 and internationalised domain names with effect from 4 July 2011. These domain names can be obtained by anyone according to the terms of the national registration policies, procedures and guidelines.

Trademark and Domain Names: Although they are mutually exclusive regimes with a different history and objectives, trademark concerns and influence is apparent in the current issues relating to the future of domain names and its use (or misuse, as the case may be). As online branding, advertising and electronic commerce is now the norm for businesses, and name recognition and association is important for other organisations and even individuals, the concerns of trademark law (and related forms of protection such as the common law action for passing off) extend to the electronic transactional environment. Concepts such as name/mark confusion (and “initial interest confusion” in the United States), that is an important element of such laws are also relevant in domain name dispute resolutions. Such concerns have also manifested in the lobbying at ICANN by such interest groups and in the evolution and expansion of gTLDs as well as certain schemes in ICANN to improve the tools for trademark owners to protect their interests.

What is the relationship between brand (and even reputation) protection laws vis-a-vis the domain name regime? Consider the objective of the Trademark Clearinghouse and look at the registration and dispute requirements under the UDRP and SDRP.

How does one go about acquiring a domain name and what can one do if another has already taken it? The Singapore Domain Name Dispute Resolution Policy (SDRP) framework, policy and rules are instructive in this regard. What goes into the registration of a domain name?

What is the role of the dispute resolution panel and its relationship with the courts?

What is “reverse domain name hijacking” and is there any effect to such behaviour under the current DN regime? What is its objective and how does it relate to trademark interests and the trademark regime?

Panel Decisions: (reference only, specific cases will be highlighted in class)

Singapore Domain Name Dispute Resolution Panel Decisions

NOTE: You are NOT REQUIRED to read these decisions before the class. 

Singapore Domain Name Regime:

Singapore Domain Name Dispute Resolution Policy and Rules

NOTE: Familiarise yourselves with the Policy only. Consider how a DN is registered (obtained) and what are the conditions for a challenge (transfer) when reading the Policy.

Background Reading:

Sections 5 & 6 of Cap. 12 on IP Law (singaporelaw.sg)

The IPOS infosite on “What is a Trademark?”

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NOTE: THIS SEMINAR WILL BE GIVEN IN WEEK 10, 28 October.

The recent amendments to the DNC Registry regime and the Spam Control regime will be explained to supplement the reading.

Session 8 - Digital Marketing

READ: ICTL TEXTBOOK CHAPTER 6

‘Right’ to be Left Alone: The PDPA consists of a data protection regime as well as a do not call regime. The second part of the Act relates more to personal privacy and the right not to be disturbed. It supplements the existing Spam Control Act in regulating the distribution of information from commercial entities to private individuals generally - although there are some exceptions, particular on the treatment of the different formats and channels of distribution.

It has been reported in the media that over 3000 organisations have been issued notifications and warnings for contravening the DNC rules within two years of its entry into force. We will consider the following questions in class:

What are the circumstances leading to the need for a Do Not Call List and how does it function? How does it compare to other anti-spam or spam-control models abroad?

What is the role of the Personal Data Protection Commissioner? Find reported cases on the enforcement of the DNC regime. Is it an audited or complaint based process?

What is the scope and effects of the Spam Control Act (Cap. 311A) of 2007? How does it function and what are the good and bad aspects of the regime?

Consider the treatment of unsolicited text messages and how it differs from voice messages, as well as the differential treatment accorded to different methods of electronic communication.

What is the relationship between the SCA and the PDPA? Are they complementary or is there a better way forward? Given the confusing and unnecessary overlap between the DNC regime and the SCA, what would you recommend to the PDPC if they were also consulting on the amendment of that regime?

Statutes:

Personal Data Protection Act

Spam Control Act

Optional Further Reading:

Warren B. Chik, Singapore Do Not Call Register and the Text and Fax Exemption Order (Law Gazette, March 2014(1))

Warren B. Chik, Proposed Anti-Spam Legislation Model in Singapore: Are We Losing the Way Before Even Starting the Battle? [2005] 17 SAcLJ 747

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Update (for information only): The ETA was amended on 19 March 2021 primarily to put in place provisions to recognise electronic transferable records as functionally equivalent to physical ones as long as a recognised "reliable method" is used (Part IIA, ETA).

THIS SEMINAR WILL BE POSTPONED TO WEEK 10, 28 October.

Session 7 - Electronic Transactions and Commerce

READ: ICTL TEXTBOOK CHAPTER 3

Electronic Contracting: In Singapore, contract law is largely based on the English common law and has developed on that basis, as judge-made law. Contract law is supplemented by some statutes and provisions in a series of legislations. The Electronic Transactions Act (Cap 88, 2011 Rev Ed) (ETA), which entered into force on 1 July 2010 and replaced the original Act that was first enacted in July 1998, specifically addresses issues relating to electronic commerce. The first enactment contained provisions drawn from the UNCITRAL Model Law on Electronic Commerce of 1996 (MLEC) and the UNCITRAL Model Law on Electronic Signatures of 2001 (MLES). The re-enactment contains some amendments, including provisions drawn from the Use of Electronic Communications in International Contracting of 2005 (CUECIC) as well as a re-ordering of the provisions.

The Electronic Transactions Act: What are the objectives and the effect of the UNCITRAL Model Laws on E-Commerce and Signatures as well as the CUECIC? What is their relationship with the ETA? What are the potential problems of modern electronic forms of communication (and electronic forms of documents and signatures) for contract law? To what extent have the revised ETA of 2010 resolved the outstanding issues relating to electronic transactions in general, and electronic contracting in particular? What are the types of matters or transactions that fall outside the scope of the Act? The IMDA and AGC is currently reviewing the ETA with a view to reform. The review relates to the UNCITRAL Model Law on Electronic Transferable Records. The model law aims to promote functional equivalence to electronic ETRs such as cheques, promissory notes, bills of exchange, bills of lading, etc. and give them full legal recognition under substantive law.

Consider the various online business models. What are the various modern forms of electronic contract formation and communications, and to what extent are electronic notices legally binding or acceptable (e.g. as sufficient notification of purpose under the PDPA).

What is the purpose and effect of section 14 of the ETA? What are browsewrap and clickwrap contracts and, in your opinion, are they legally binding?

Compare and contrast the doctrine of unilateral mistake that is applied to the electronic contracting context for the vitiation of a contract to section 16 of the ETA. What was the purpose of the new provision and what are the potential problems that may arise in relation to it? Examine the Digilandmall and Quoine decisions on the doctrine of unilateral mistake.

What is the reason and basis for the use of automated message systems for contract formation and what are some examples of modern transactions that involves the use of such systems in transactions. Is there a necessity for such a provision (section 15 of the ETA) and does existing contract law not provide a legal basis for such contracts? and the issue of legal responsibility, rights and liability.

What is the law on electronic signatures (and records)? What are the challenges of electronic signatures as compared to physical ones? What is the objectives and purpose of the relevant provisions under the ETA (Parts II & III and 2nd & 3rd Schedules only) in relation to them? What is the difference, if any, between an “electronic”, a “secured electronic” and a “digital” signature?

Cases:

Quoine Pte Ltd v B2C2 Ltd [2020] SGCA(I) 02

Joseph Mathew and another v Singh Chiranjeev and another [2009] SGCA 51; [2010] 1 SLR 338 (CA)

Wee Soon Kim Anthony v Lim Chor Pee and another [2005] 4 SLR 367 (HC); 2 SLR 370 (CA)

SM Integrated Transware Pte Ltd v. Schenker Singapore (Pte) Ltd [2005] 2 SLR ® 651

Chwee Kin Keong v. Digilandmall.com Pte Ltd [2004] 2 SLR ® 594

Statutes:

Electronic Transactions Act (ETA) 2010 (updated as of 2012)

Optional Further Reading and References:

Eliza Mik, Certainty at Last? A “New” Framework for Electronic Contracting in Singapore (2013) Vol. 8 No. 3 JICLT

Eliza Mik, Contracts Governing the Use of Websites (2016) SJLS 70-94

Rosemary Lee, Annotated Statutes of Singapore: Electronic Transactions Act LexisNexis (2012) (available in SMU Course Reserves)

K. Chia et al, Update of the Electronic Transactions Act Singapore Law Gazette (July 2010) at p. 17

Eliza Mik, The Effective of Acceptances Communicated by Electronic Means, or - Does the Postal Acceptance Rule Apply to Email? (2009) 26 JCL 68

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NB Final presentation topic (by Wendy/Elizabeth) is "The competition aspects of e-commerce and how competition authorities are dealing with it”

Instructions: RESEARCH AND WRITING can begin after the topic and outline has been approved by the instructor. Use the presentation to present your findings from research, and with the benefit of feedback and comments, complete the paper assignment and submit within 2 weeks of the presentation. PRESENTATIONS will be up to 10 minutes per candidate (e.g. for a group of 3, it will be up to 30 minutes). PAPERS should be approximately 1000 words per candidate (e.g. for a group of 3, it will be up to 3000 words including footnotes and citations) in Times New Roman, font size 12, single spaced.

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Instructions:

RESEARCH AND WRITING can begin after the topic and outline has been approved by the instructor. Use the presentation to present your findings from research, and with the benefit of feedback and comments, complete the paper assignment and submit within 2 weeks of the presentation.

PRESENTATIONS will be up to 10 minutes per candidate (e.g. for a group of 3, it will be up to 30 minutes).

PAPERS should be approximately 1000 words per candidate (e.g. for a group of 3, it will be up to 3000 words including footnotes and citations) in Times New Roman, font size 12, single spaced.

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Session 6. The Impact of Infocomm Innovations on Copyright Law and Industry

PART 1

READ: ICTL TEXTBOOK CHAPTER 9

Overview of Copyright and New Technology: What were the amendments to bring the Act into the digital age, and to make the copyright regime relevant to digital media and the electronic medium?  What are the effects of the amendments specifically on Internet functionality (e.g. hyperlinking, imbedding, user/system caching, etc.) as well as storage/delivery platforms/devices and formats, generally? Consider the amendments that take into account electronic content in digital and electronic form (are they also considered in “material form”), the inclusion and treatment of computer programs, caching, etc. (ref. relevant provisions in Parts II, III & IV of the Act). What is Rights Management Information (RMI) in Part XIII and the provisions on the Circumvention of Technological Measures (CTM) in Part XIIIA? What is the objective of RMI and the provisions on the Circumvention of Technological Measures? Why is there a tension between the RMI and CTM provisions that are favoured by copyright owners, and the interests of technology creators that can create countervailing measures as well as those parties that may want to use copyrighted materials legally without the need to seek permission from copyright owners?

Protectionism versus the Sharing Culture for UGC: The sharing culture and open access to information and all forms of content online is increasing the tension between copyright objectives and other societal interests. The original balance set by the copyright regime may not be suitable to the age of new media and some form of recalibration may be required.

User Infringement as a Crime: How can Internet users infringe copyrighted works? What type of online behaviour can give rise to cvil liability for copyright infringement under Singapore law? Also, what is the reason for legislating criminal liability for copyright infringement by individuals under the Singapore Copyright Act (i.e. personal liability for wilful infringement under section 136(3A) of the Act) and what types of behaviour does it cover? Is it a fair allocation of liability to ICT users?

Fair Use and Users Generating Content: What is the relevance of the Singapore fair dealing (equivalent to the US fair use) doctrine to the manner in which user generated content can be produced? Is there a private use exception and what does it cover? Does fair use protect various forms of speech (e.g. parody and satire) and the adaptation of works? For example, does it sanction mash-ups, the use of background music, choreography, etc. without permission from the copyright owner/licensee? What are the doctrines that have emerged from this concept that are applicable to the online environment? Explain the significance of the open ended fair use exception in US Copyright law and how the US courts have developed “transformative use” as a ‘new’ factor in the fairness analysis.  Consider the unique solution for UGC in the Copyright Modernization Act (Bill C-11) of Canada (2011).

Tensions between Fair Use/Dealing and Take Down Notices/Anti-Circumvention Technology and Laws: Consider how the matter was dealt with under the US fair use provision in Lenz v Universal Music Corp. (the latest ruling by the 9th Circuit US Court of Appeals in 2016). How does the DRM/ACM provisions affect the exercise of fair use/dealing?

Five Questions:

What are the users’ rights relating to developments in ICT (e.g. private and domestic use, user caching and transfer of electronic copy of material, etc.)?

Examine the law on copyright infringement by users, in particular the criminal provision on illegal downloading and the fair use/dealing exception that protects users from civil liability for certain uses. How do users utilise copyrighted works without licence or seeking permission in a way as to avoid civil and criminal liability?

Examine the socio-cultural impact of the Creative Commons project. How does it, for example, encourage a UGC culture driving such initiatives as Wikipedia and Flickr?

What is so unique about the Canadian approach to fair dealing and how does it acknowledge UGC in the equation? (This will be presented in class).

Cases: (prepare for class presentation and discussion)

Lenz v Universal Music Corp. (9 Cir. Mar. 17, 2016)

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994)

Statutes: (for reference in class, important provisions will be highlighted)

Copyright Act (ss. 26, 31, 35-7 only)

Further (optional) reading: (for those with an interest to further explore)

David Tan & Benjamin Foo, The Unbearable Lightness of Fair Dealing: Towards an Autochtonous Approach in Singapore (2016) 28 SAcLJ 124

HLR Case Brief, Lenz v Universal Music Corp.: Ninth Circuit Requires Analysis of Fair Use Before Issuing of Takedown Notices 129 Harv. L. Rev. (2016)

Saw Cheng Lim & Susanna Leong, Defining Criminal Liability for Primary Acts of Copyright Infringement: The Singapore Experience Journal of Business Law (2008) (4) 304-315

PART 2

READ: ICTL TEXTBOOK CHAPTER 10

Types of Copyright Infringement: What is the difference between direct and authorising of infringement under the CA? What is the effect of the scope of authorising infringement liability set down by Ong Seow Pheng v. Lotus on the case of RecordTV v. Mediacorp TV? What is the significance of the latter case on the policy and legal treatment of innovators of information and communications technology? How is the treatment of secondary infringers in Singapore (and Australia, from which the provision is derived) different from the U.S.? Also, what is the reason for legislating criminal liability for copyright infringement (e.g. personal liability for wilful infringement under section 136(3A) of the Act)?

Critically examine the court’s ruling and opinion in the following copyright infringement cases -

Explain the origins and elements of the following secondary copyright liability in the U.S.: (a) vicarious infringement and (b) contributory infringement.

Analyse and consider the judgment in Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008) (Cablevision). Do you agree with the decision and its reasoning? How did it influence the outcome in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2010] SGCA 43 (CA) (Singapore Court of Appeal)?

Succinctly compare and contrast the decision and reasoning in RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2009] SGHC 287 (HC) (Singapore High Court) and RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2010] SGCA 43 (CA) (Singapore Court of Appeal). What did the courts say in relation to (a) intermediary safe harbour, (b) authorising infringement and (c) primary infringement?

Cases: (prepare for class presentation and discussion)

Broadcasting Cos v Aereo Inc [2014] USSC (United States Supreme Court)

Rugby League Investments Pty Limited v Singtel Optus Pty Ltd [2012] FCA 34; [2012] FCAFC 59 (Full Federal Court of Australia)

ITV Broadcasting Ltd & Ors v TV Catchup Ltd [2011] FSR 40, [2011] EWHC 1874/2977 (Pat); ITV Broadcasting Ltd v TVCatchup Ltd (Case C-607/11) (European Court of Justice)

RecordTV Pte Ltd v MediaCorp TV Singapore Pte Ltd and others [2009] SGHC 287 (HC); [2010] SGCA 43 (CA)

Cartoon Network, LP v. CSC Holdings, Inc., 536 F.3d 121 (2d Cir. 2008)

Ong Seow Pheng v Lotus Development Corporation [1997] 3 SLR 137

Statutes: (for reference in class, important provisions will be highlighted)

Copyright Act (ss. 26 & 31 only)

Further (optional) readings: (for those with an interest to further explore)

CL Saw & WB Chik, Whither the Future of Internet Streaming and Time-Shifting? Revisiting the Rights of Reproduction and Communication to the Public in Copyright Law After Aereo (2015) 23(1) International Journal of Law and Information Technology 53.

CL Saw & WB Chik, Authorisation of Copyright Infringement in Singapore, (2012) 24 SAcLJ 698-744 (available free online).

CL Saw & WB Chik, 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 (2011) 23 SAcLJ 653-681 (available free online).

Jeffrey C.J. Lee, Authorizing Copyright Infringement and the Control Requirement: A Look at P2P File-Sharing and Distribution of New Technology in the U.K., Australia, Canada and Singapore (2007) Canadian Journal of Law and Technology 83-98, available via this link

Background Readings: (for those who have not taken an IP/(C) Law course and are not familiar with copyright may find these resources useful)

Section 1 of Cap. 12 on IP Law (singaporelaw.sg)

The IPOS infosite on “What is Copyright”

The IPOS infosite on asking permission and using copyright