and FTAs of Singapore: Ten Years On

Of course, whether and how much of this drop is attributable to the enhanced IP enforcement measures is the ‘million dollar’ question.

From the perspective of those who believe that a stronger IP regime would spur growth in the IP-based sectors, they would be paying attention to two particular sectors. The first is the ‘creative cluster’³³ for which copyright is important. The 2003 Economic Review Committee Report had noted the potential growth of this cluster, projecting that its contribution to Singapore’s GDP in 2012 could be increased to 6 %.³⁴ Some studies on a very similar cluster of economic activities (‘core copyright’ sector) have put the GDP contribution of this sector in 2001 and 2004 as 2.9 and 3.04 % respectively.³⁵ At this marginal growth rate, the projected GDP contribution of the core copyright sector in 2013 would only be about 3.46 %, falling far short of the 6 % target to be achieved by 2012. Indeed, the preliminary official statistics indicate that the contribution of the ‘information & communication’ industry to GDP in 2012 was 3.57 %.³⁶

The second sector concerns the pharmaceuticals, this being the main beneficiary of the post-FTA enhanced patent system that came into effect in July 2004. Table 2 provides some information about the contributions of the biomedical manufacturing cluster (comprising the pharmaceuticals segment and the medical technology segment) to the manufacturing sector in Singapore.

These statistics suggest that the post-2004 stronger patent protection in Singapore has not made a significant impact on the growth of the biomedical manufacturing cluster.

From the perspective of an academic studying the development of IP law, there is the concern that IP right-holders seem to resort to the USSFTA as the ‘cure all’ medication for their woes and mistakes, using it to argue for rights which they do not have in domestic law. A recent case illustrates this danger. The Singapore copyright licensee of Japanese animés (cartoon animations) brought proceedings in its own name against an Internet service provider (ISP) for pre-action discovery to obtain from the defendant the identities of its clients who allegedly downloaded these Japanese animés.³⁷ The dispute did not involve the question of whether there was copyright infringement or even the responsibilities of ISPs under the copyright law. It was a simple issue of locus standii—whether a non-exclusive licensee could bring legal proceedings in its own name to enforce the rights of the copyright owner. As noted by the court in this case, the copyright owners in this case, whether for cultural and/or corporate reasons and/or whatever other reasons, were reluctant to bring legal proceedings. It is very clear from the provisions of the copyright legislation of Singapore that, apart from the copyright owner, an exclusive licensee may bring an action for copyright infringement in its own name (without joining the copyright owner as plaintiff or adding the copyright owner as a defendant, unless the court orders otherwise). There is no statutory provision for a non-exclusive licensee to sue for copyright infringement (and this has been confirmed by case law) and accordingly no right for the non-exclusive licensee to apply for pre-action discovery. Nonetheless, the non-exclusive licensee in this dispute—the plaintiff—defended its position rigorously by arguing inter alia that there is a provision in the US copyright empowering ‘a person authorised to act on the [copyright] owner’s behalf’ to apply for discovery against an ISP, and that this was envisaged by the enforcement provisions in the US-Singapore FTA which guaranteed that copyright owners shall be able to obtain ‘expeditiously’ the identities of alleged infringers from an ISP.³⁸ Thankfully, this attempt to ‘Americanize’ Singapore copyright law was rejected by the court.