Software piracy rate (%)
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.
Contributions of biomedical manufacturing in Singapore 2004, 2006 & 2011
Contribution to total output in manufacturing (%)
Contribution to employment in manufacturing (%)
Contribution to investment commitments in manufacturing/services (%)
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.
Upon the signing of USSFTA, there was concern that the IP Chapter in this FTA would become the template for other free trade negotiations. As far as Singapore is concerned, this concern has not materialised: there were many more regional and bilateral FTAs/EPAs signed by Singapore after the one signed with the US, and none of these agreements contains anything remotely resembling the IP Chapter in the US-Singapore FTA. On the contrary, there seems to be an understanding in the negotiations that the subject-matter of IP should be left to be governed by the TRIPS Agreement. It must be this reason that prompted the inclusion in many of the later FTAs/EPAs a provision where the signatories reaffirmed their commitment to WTO disciplines and more specifically their commitment to the TRIPS Agreement.39 Another example is a provision where the signatories agreed to interpret and implement their patent laws in a way that is consistent with the Doha Declaration on the TRIPS Agreement and Public Health.40
In fact, there can even be detected a certain amount of ‘pull back’ from overly-strong IP protection. For example, some of the later FTAs/EPAs contain expressions of commitment to protect ‘public morals, order or safety’ and ‘human, animal or plant life or health’.41 Another example is the provision in the Singapore-Costa Rica FTA (2010) where the parties ‘acknowledge and reaffirm the principles established in the Convention on Biological Diversity adopted on 5 June 1992 and encourage a mutually supportive relationship between the TRIPS Agreement and the Convention on Biological Diversity’.
In short, Singapore recognises that what is sauce for the goose (a very high level of IP protection in Singapore) may not be appropriate sauce for the gander (similarly high level of IP protection in her trading partners). It remains to be seen if the position changes in the negotiations for the proposed Trans-Pacific Partnership Agreement.