key: cord-0039309-eehbget1
authors: Wee Loon, Ng-Loy
title: Singapore
date: 2008-12-11
journal: Intellectual Property in Asia
DOI: 10.1007/978-3-540-89702-6_9
sha: e851aa89fee786ed8bf245716d455928ae8ed04d
doc_id: 39309
cord_uid: eehbget1

nan

For a project that seeks to identify the factors that impact the status of intellectual property in Asia's emerging markets, Singapore is a very interesting case study. For one thing, Singapore's experience appears to be a textbook example of the theory that advocates that a strong IP infrastructure promotes economic growth. When Singapore became an independent nation in 1965, her GNI per capita of US$529 was mainly derived from a colonial economy that was highly dependent on entrepôt trade 2 and the British Army. This Third World economy did not have a very good physical infrastructure, much less a strong IP infrastructure. Today, the scene is very different. Singapore is a highly industrialised country whose GNI per capita of US$33,919 3 qualifies her as a "high income country" in the books of the World Bank, placing her with developed/First World countries. 4 On the IP front, her legal regime of protection is "TRIPS-plus," and recently she even emerged as one of only three Asian countries (the others being Japan and Taiwan) on the list of the top twenty-five countries in the world with the lowest software piracy rates. 5 As this paper will show, there is a co-relationship between the degree of maturity of the IP infrastructure in Singapore and that of her economy: the growth of her IP infrastructure is in fact the result of concerted efforts of her policy-makers to nurture it, to use it as a tool to achieve economic goals. This paper first tracks the evolution of the IP laws of Singapore, as well as the policy reasons underlying the changes made during the following three stages of her economic development:

(1) 1965-1989 (Towards an Industrialised Economy) (2) 1990-1999 (Towards a Globalised Economy); and (3) 2000 and Beyond (Towards a Knowledge-Based Economy). Next it looks closely at enforcement of IP rights, noting the extent to which IP laws in Singapore are more than just laws on the books. To provide a gauge of the growth of IP practice from one stage to the next, statistical data relating to the filing of trademark and patent applications and to infringement actions are also given. The paper then provides a brief overview of the cultural, political, education, and scientific factors that contribute to Singapore's IP infrastructure.

Another reason why Singapore is interesting to this project is that, unlike the other East Asian "Tigers," South Korea and Taiwan, Singapore's rapid technological development and industrialisation programme is heavily dependent on MNCs rather than on indigenous firms. 6 The Conclusion briefly examines whether the strong IP infrastructure has any adverse effects on innovation amongst indigenous firms. It also offers some thoughts on the use of a strong IP infrastructure to attract foreign direct investment (FDI) into a country.

A glimpse of the bleak economic landscape in Singapore at the start of its nationhood is given by Lee Kuan Yew, the country's founding Prime Minister, in his memoirs, From Third World to First: The Singapore Story, 1965-2000: a small island with no natural resources, apart from her deep-water harbour, and whose only valuable asset was her two million people (described by Mr. Lee as "hardworking, thrifty, eager to learn" 7 ); the end of her entrepôt trade (as her immediate neighbour and former political partner, Malaysia, 8 worked to bypass Singapore and deal directly with its trading partners through its own ports); the loss of a vast hinterland and domestic market to absorb Singapore-made goods (also as a result of her political fall-out with Malaysia); and the impending withdrawal of the British Army, 9 and with it, the loss of some 20% to GDP and over 70,000 jobs in 6 direct and support services. Unemployment in Singapore then was high (at 14%) and rising.

The strategy was to embark on an industrialisation programme that was exportoriented. Foreign investors were actively wooed 10 to develop their manufacturing operations in Singapore for export to world markets-both in low-technology, labour-intensive industries (e.g., textile, garment, and toy factories were set up by Hong Kong and Taiwanese businesses) and in higher-technology industries. The electronics sector began during these early years with American MNCs setting up in Singapore: Texas Instruments in 1968, National Semiconductor in 1969, Hewlett-Packard in 1970, etc. From the outset, the political leaders were not suspicious of MNCs; they did not believe that MNCs would exploit Singapore. In the words of Mr. Lee, "If MNCs could give our workers employment and teach them technical and engineering skills and management knowhow, we should bring in the MNCs." 11 By the late 1970s, Singapore had solved its unemployment problem. 12 In fact, its economic planning succeeded so well that it was facing a new problem: a tight labour market and upward pressure on wages, which made Singapore a less attractive place for MNCs relative to the emerging low-cost countries in the region. The 1980s, therefore, saw Singapore embark on what the Government called the "Second Industrial Revolution," 13 wherein her investment policy shifted toward promoting higher value-added and skills-intensive activities such as engineering design and computer services.

During the first phase of industrial revolution in Singapore from 1965 to the late 1970s, IP barely featured. This is hardly surprising, given that, apart from trademarks, IP was not really an issue in low-technology manufacturing industriesexcept phonograms, a case which I will return to shortly. Further, the MNCs who brought in the higher technology had not begun to see the value of IP and seemed satisfied, if they thought about IP at all, with the existing system of IP protection. This system, inherited from the British, comprised the following: 10 The Economic Development Board was the lead agency in Singapore tasked with courting and convincing foreign investors that Singapore was a good place to invest in, a role it still plays today. 11 LEE, supra note 7, at 76 -Common-law action for breach of confidence to protect trade secrets.

Of the above laws, only two were enacted after independence: the Copyright (Gramophone Records and Government Broadcasting) Act 1968 and the Patents (Compulsory Licensing) Act 1969. The purpose of the second is self-evident. The first deserves special mention because the parliamentary debates generated during the enactment of this Act provide insight into the attitude of the policy-makers towards IP at that time.

The Copyright (Gramophone Records and Government Broadcasting) Act 1968 was introduced into Parliament with two specific aims. First, it was to deal with the increase in the importation and sale of pirated records of copyrighted musical works. This problem, according to the Minister of Law and National Development at that time, threatened the livelihood of local artists, composers, and musicians, as well as the subsistence of three newly established sound recording companies in the Jurong Industrial Park. The proposed law therefore imposed penalties (fine and/or imprisonment) for the manufacture or commercial exploitation of pirated gramophone records. The second purpose of the Act was to exempt Government broadcasting from infringement of copyright in musical works and in gramophone records, in order to stop payment of royalties to the Performing Rights Society (PRS) and International Federation of Phonographic Industry (IFPI nial rule, the Governor of Singapore had issued a directive to make the payments to these U.K.-based organisations. The new political leaders of Singapore did not agree that such payments were due, since broadcasting in Singapore was a nonprofit activity undertaken by the Government and had an educational component. The exemption proposed by the new bill would dispense with further payments to PRS and IPFI, thereby keeping the cost of broadcasting as low as possible for the benefit of the people.

In the course of persuading his colleagues to accept the proposed law, the Minister assured them that, although Singapore had attended many international conferences on the protection of copyright, designs, and patents:

. . . we are not a member of international conventions and we have no intention of becoming a signatory to these conventions. The reason, I repeat, is that these conventions are for the benefit of the developed countries who refuse to share their knowledge with us. It is for this reason that a Bill of this nature was not passed before. I have mentioned that three industries have been set up in Jurong producing musical records and it is for the protection of these industries that this Bill is introduced. 16 This renunciation of IP, one might say, epitomises the attitude of a Third World country towards IP. (Indeed, even the United States, in its early days as a netimporter of copyright works, did not exactly give priority to the protection of foreigners' works under its copyright law (the 1790 Act), thereby allowing piracy in the United States of books by British authors such as Charles Dickens. 17 ) The Minister's speech is also interesting for another reason: it demonstrates how focused policy-makers in Singapore can be, how willing they can be to toughen up IP laws in order to achieve a particular economic goal-in this case, the survival of the three sound recording companies in the Jurong Industrial Park.

The change in Singapore's attitude towards IP started in the mid-1980s, 18 corresponding to the shift in the country's focus towards higher-technology industries such as the software industry. By spoke in Parliament of the importance of having stronger, better copyright laws if Singapore wanted to "foster an environment of creativity, and to encourage the development of our software industry." 19 A revamp of copyright law was proposed in 1986. When introducing this new law in Parliament, the Minister of Law also repeated the need for Singapore to update its copyright law to keep abreast of developments in the field of computer science, sound and video recording, cable television, satellite broadcasting, and photocopying. Some emphasis was given to the software industry-the need to provide the legal framework necessary for the development of a strong software industry in Singapore, so that major international computer companies and software houses planning to set up software development centres in Singapore could be assured that their products would be adequately protected. 20 There was another reason for Singapore's decision in 1985-1986 to improve its copyright law. The 1980s was the era when developed countries started linking international trade with IP protection. In particular, the United States had passed the Trade & Tariff Act in 1984, tying the trading benefits of the Generalized System of Preferences (GSP) granted to developing countries, to their respect and protection of U.S.-origin IP. The United States exerted pressure on Singapore to enact a new copyright law before the completion of the U.S. GSP Review at the end of January 1987, or face the consequences of losing her GSP status, that is, higher cost for Singapore goods imported into the United States because of the tariffs payable on these imports, making them less competitive vis-à-vis imports from other developing countries. In fact, Singapore was promised a better GSP package if the timing and quality of her new copyright law satisfied the United States. 21 The U.S. influence on the enactment of the Copyright Act is not groundless speculation. The Minister of Law himself candidly acknowledged this, when he introduced the Copyright Bill in Parliament in 1986: Beyond our own requirements, I should also mention that in recent years one significant source of friction with our trading partners, particularly the United States, has been the inadequacy of our existing copyright laws. … I hope that the introduction of this Bill will remove one contentious issue and so improve our relations with these partners. 22

But, the Minister emphasised, this external consideration coincided with Singapore's national interest in updating its copyright law (e.g., the growth the software industry, development of Singapore as an information centre, greater incentives to foreign investors to come to Singapore). 23 His message was for Singapore to focus not on the "stick,'" but on the "carrots" of having a modern copyright law. As events would show later, this proved to be the right attitude to adopt.

Parliament passed the Copyright Act on January 26, 1987, meeting the deadline set by the United States. The Copyright Act 1987 is still the governing copyright legislation today. By and large, it embodies the standards of copyright protection found in developed countries; it is modelled on Australia's copyright law, but there are also British and American influences. 24 At the same time, there are home-grown provisions catering to Singapore's particular needs. For example, a provision was crafted to allow parallel imports into the market so that the public in Singapore would not be denied the opportunity to purchase lower-priced but legitimate editions of books originating from some other country. 25 As for the raison d'être of the new law, the Copyright Act 1987 expressly gave protection to computer programs as a type of literary work. Regulations were also immediately enacted to extend copyright protection to American works. 26 As quid pro quo, the United States accorded Singapore an enhanced GSP package.

Barely six months after Singapore started enjoying an enhanced GSP package, the United States informed Singapore that it would be "graduated" from its GSP status in 1989. While stung by the United States' decision, 27 Singapore's stoical response was to "not cry over split milk" but "to work hard to make good by being more competitive, by diversifying our markets, by moving into more sophisticated products, where the GSP makes less difference." 28 After all, the domestic conditions in Singapore alone justified the promulgation of a stronger copyright regime. 29 Figures 1 and 2 (Appendix) set out the statistical data relating to patent and trademark filings in Singapore. During the 25-year period of industrialisation in Singapore, there were in total 14,596 patent applications and 107,289 trademark 24 A classic example would be Section 35, providing for the defence of "fair dealing" for the purpose of "research or private study." This provision was a medley of sub-sections originating from the copyright laws of Australia, the United Kingdom, and the United States. Note that this provision has since been amended, particularly in 2005. Today, the "fair dealing" defence in Singapore is much closer to the American model of "fair use." See also infra note 70 and accompanying text. 25 applications filed. The majority of this-59% of the patent applications and 56% of the trademark applications-was filed during the 10-year phase of the Second Industrial Revolution (1980) (1981) (1982) (1983) (1984) (1985) (1986) (1987) (1988) (1989) , when the economy in Singapore was more mature.

The late 1980s saw intensifying competition from neighbouring developing countries. By 1992, for example, China had become the largest recipient of FDI in Asia, exceeding ASEAN's share in total. 30 To meet these challenges, Singapore's economic planning for the 1990s included strategies to promote the service sector together with manufacturing, to deepen the technology base, and to create an "external" economy through globalisation. The idea behind the strategy to deepen the technology base in Singapore was to move Singapore up the value-chain in manufacturing, especially in emerging fields such as biotechnology, and to attract research and development (R&D) activities. The policy-makers firmly believed that a solid IP infrastructure, particularly a sound patent system, was needed to achieve this goal. 31 The patent regime in Singapore dated back to the Registration of U.K. Patent Act 1937, a piece of colonial legislation which set up a system of re-registering a patent granted in the United Kingdom. 32 It was a costly, cumbersome, and time-consuming process. The Ministry of Law acted, announcing plans in 1990 for the review of this patent registration system. 33 Singapore became a contracting party to the WIPO Convention in December 1990, and the review of its patent law was done with the advice of WIPO. 34 The new Patents Act 1994 (still in force today) is modelled on the U.K. Patents Act 1977, but a few material differences exist. For example, the Singapore law expressly allows parallel imports, 35 and there is no prohibition against the patenting of animal or plant varieties or essentially biological processes for the production of animals or plants (other than microbiological processes or their products thereof). 36 This prohibition was considered and specifically rejected by the Select Committee set up to scrutinise the Patents Bill. The Select Committee took the view that allowing patents on varieties of plant and animal (non-human species) was necessary in order to encourage research into horticulture, agriculture, and biotechnology. 37 The difficult moral and ethical issues involved in such research did not appear to faze the policy-makers. However, it would not be fair to say that Singapore's utilitarian approach to IP completely ignores morality and ethics. In fact, unlike the United States, the new Patents Act has a provision prohibiting the patenting of an invention the publication or exploitation of which would generally be expected to encourage offensive, immoral, or anti-social behaviour. 38 Thus, any attempt to patent human beings and the related biological processes could be resolved by reference to this ordre public provision. 39 One other feature of the new patent regime should be highlighted. Given its relatively small economy and limited human resources, Singapore decided to avoid the substantial investment that would be needed to build up full-fledged search and examination capabilities in Singapore. Hence, patent registration in Singapore is a "self-examination" system, that is, there is no substantive examination of patent applications by the Singapore Registry of Patents. Instead, patent grants are made 34 based on search and examination reports furnished by designated foreign patent offices or the International Search and Preliminary Examinations Authorities under the Patent Cooperation Treaty (PCT). Thus, at the same time as the Patents Act 1994 came into force in February 1995, Singapore acceded to the PCT, as well as to the Budapest Treaty and the Paris Convention. Plugging herself into the international patent registration system also accorded with Singapore's strategy to globalise. 40 For Singapore and her plans to globalise in the 1990s, the conclusion of the General Agreement on Tariffs and Trade (GATT) negotiations could not have been more timely. Singapore was all poised to enter the WTO on January 1, 1995, and to implement the minimum standards of IP protection recognised by the international community as set out in the TRIPS Agreement. 41 See Article 65(2) of the TRIPS Agreement, which provided a five-year transition period for developing countries, so that the deadline for implementation of the provisions therein for such countries was 2000. Singapore's status as a developing country is recognised by international agencies such as the World Bank and the Asian Development Bank. 42 This prohibition is the same as the notorious "as such" provision in Section 1(2) of the U.K.

Patents Act 1977. See also European Patent Convention, Art. 52(2)-(3). Singapore took the position that this prohibition is inconsistent with Article 27(1) of the TRIPS Agreement, which requires WTO members to make available patents for "any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application" (emphasis added). 43 This was to bring the compulsory licensing provisions in the Patents Act 1994 in line with what is allowed in Article 31 of the TRIPS Agreement. 44 Singapore acceded to the Berne Convention in 1998. 45 See TRIPS Agreement, Art. 11. Singapore did not introduce this right for cinematographic films, presumably relying on the exception allowed in Article 11, that is, rental of cinematographic films in Singapore has not led to widespread copying of such works, which is materially impairing the exclusive right of reproduction of the authors.

There were other changes to Singapore's IP laws during the 1990s, which were not TRIPS-related; rather, they were part of the Government's efforts to adjust the IP laws to meet the needs of the public and the industries in Singapore, and/or to update the laws to keep abreast of the developments of new technology. Four sets of amendments will be mentioned as examples to illustrate this. First, an amendment to the copyright law was made in 1994 to ensure that copyright owners would not be able to exercise their monopoly to repel parallel imports. It has been mentioned earlier that the Copyright Act 1987 contains a provision specifically aimed at legitimising parallel imports. 46 The provision proved to fall somewhat short of this aim, a shortfall which became apparent in the litigation in Public Prosecutor v. Teoh Ai Nee. 47 Within one year after this case was decided in September 1993, the Government moved to amend the Copyright Act 1987 to plug the identified lacuna. 48 Second, an amendment to the copyright law was made in 1998 to delete a provision that excluded commercial entities from the "fair dealing" defence for the purpose of "research or private study." 49 The existence of this provision had compelled the Court of Appeal to find, in Creative Technology Ltd. v. Aztech Systems Pte. Ltd., 50 that reverse engineering of software (by decompilation) for commercial purposes was prohibited by the Copyright Act 1987. There was no leeway for any consideration of the fairness or otherwise of the activity. 51 The difficulties posed by such a provision to R&D work in Singapore are obvious. About 46 Supra note 25, and accompanying text. 47 1 SLR 452 (1994). This case held that the importation of a copyright product and its distribution in Singapore would be unlawful if the imported article was manufactured abroad without the consent of the local owner in Singapore. Although the effect of the decision would still allow for parallel imports, for example, when the local and foreign owners are identical, one class of genuine imports-those manufactured in countries whose copyright owner is different from that in Singapore and where the Singapore copyright owner has not given his consent to the manufacture of the product-would be barred. 48 See Copyright (Amendment) Act 1994 (Aug. 25, 1994) (introducing new subsections 25(3)-(4)). 49 See the repealed Section 35(5), providing that, for the purpose of the fair dealing defence for "research or private study," "'research' shall not include industrial research or research carried out by corporate entities (not being bodies corporate owned or controlled by the Government), companies, associations or bodies of persons carrying on business." 50 1 SLR 621 (1997). The litigants, Creative Technology Ltd. and Aztech Systems Pte. Ltd., are Singapore companies and rivals in the sound card industry. Creative Technology Ltd. is the market leader, where its famous "Sound Blaster" sound card sets some of the industry standards. In order to develop a sound card that is compatible with the sound standards existing in the industry, Aztech reverse engineered (by decompiling) the software in the "SoundBlaster" sound card. The parties had also started litigation in the United States. When the action was brought in Singapore, the U. sixteen months after the Court of Appeal's judgment was delivered, this provision was repealed. 52 Third, a new Registered Designs Act 2000 was enacted. This discontinued the protection of designs registered in the United Kingdom and put in place a registration system, thereby making it an easier for businesses to obtain protection for their product designs in Singapore.

Fourth, major amendments were made to the copyright law in 1999 to "address the more urgent needs of copyright owners and users of copyright materials in the on-line environment." 53 This set of amendments, inter alia, introduced a "user caching" defence permitting the making of a transient or electronic copy of copyrighted material in the user's computer from an electronic copy of the material made available on a network; introduced civil remedies to protect rights management information; and created certain exemptions from copyright liability for network service providers.

Compared to the first twenty-five years, IP practice in Singapore in the 1990s grew by leaps and bounds, as can be seen from the statistical data on patent and trademark filings set out in Figures 1 and 2 (Appendix) . For example, the average number of patent applications filed per year in 1990-1999 (4,786) represents a 720% increase over the average number of patent applications filed per year in 1965-1989 (584).

In 1995, with a GNI per capita of US$24,520, Singapore made it to the World Bank's list of "high income countries." The strategies adopted in the 1990s to move Singapore's manufacturing sector up the value chain bore fruit: for example, chemicals-related products accounted for 17% of this sector in 2001 compared to 8% in 1985, and R&D had grown in traditional areas like electronics but also in new areas like biomedical sciences. 54 But countries in the region were also fast catching up. For example, in 1996 when Singapore launched the "Singapore ONE" project to develop a nationwide multimedia broadband network, Malaysia established its "Multimedia Super Corridor" in the same year. To maintain Singapore's competitiveness in this new millennium, the current phase of economic planning is to work towards graduating Singapore into a "knowledge-based, innovation-driven economy." 55 This means, inter alia, moving its manufacturing sector even further up the value chain to become more knowledge-and research-intensive; shifting R&D from applied and 52 See Copyright (Amendment) Act 1998 (Feb. 19, 1998) . 53 downstream research to basic and IP-creating research; and promoting the digital media sector. 56 It is also important for Singapore to further expand external ties. On the latter, it was observed that:

We [Singapore] will continue to support the World Trade Organisation (WTO) as it remains the foundation for world trade, and protects small countries like Singapore against unfair unilateral trade policies. However, a purely multilateral approach has its limitations. We are therefore supplementing it with bilateral FTAs with key trading partners. 57

Of the few FTAs which Singapore has signed, the most significant (from the IP perspective) is the one with the United States. The U.S.-Singapore FTA, signed in May 2003, has an IP Chapter mandating the adoption of standards of IP protection which go beyond the minimum standards laid down in the TRIPS Agreement. Some of them even go beyond the standards set out in the more recent international IP treaties, namely, the WCT 1996 and the WPPT 1996. A few examples on copyright and patent will illustrate the "TRIPS-plus" and "WCT/WPPT-plus" nature of the U.S.-Singapore FTA:

-While the TRIPS Agreement leaves the issue of parallel importation (exhaustion of IP rights) to be decided by the individual WTO country, 58 the FTA provides certain restrictions on parallel importation of pharmaceutical products. 59 56 The digital media sector is part of the "creative cluster" (arts and culture, design, media) identified by the Report of the Economic Review Committee (2003) as one of the three promising growth areas for Singapore in the New Millennium (the other two being healthcare and education 58 TRIPS Agreement, Art. 6 ("For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights."). 59 For example, Article 16.7.2 of the U.S.-Singapore FTA obliges parties to provide "a cause of action to prevent or redress the procurement of a patented pharmaceutical product, without the authorization of the patent owner, by a party who knows or has reason to know that such product is or has been distributed in breach of a contract between the right holder and a licensee, regardless of whether such breach occurs in or outside its territory. Each Party shall provide that in such a cause of action, notice shall constitute constructive knowledge." This is subject to the following proviso: "A Party may limit such cause of action to cases where the product has been sold or distributed only outside the Party's territory before its procurement inside the Party's territory." -While the TRIPS Agreement's provision on permissible exceptions to the patent monopoly is general in nature, 60 the FTA introduces a specific "Bolar" exception, which allows generic drug manufacturers to conduct tests on a patented drug during the patent term, limited to testing to meet the requirements for marketing approval in the United States and Singapore. In other words, the testing cannot be done for the purpose of meeting the requirements for marketing approval outside the country. 61 -While the TRIPS Agreement provides for a minimum patent term of twenty years, the FTA requires parties to provide for the extension of this twenty-year patent term in two cases: (a) to compensate for unreasonable delays that occur in granting the patent, and (b) with respect to any patented pharmaceutical product, to compensate for unreasonable curtailment of the patent term as a result of the marketing approval process. 62 -While the TRIPS Agreement provides for a minimum copyright term of "life plus fifty years," the FTA extends this duration by an extra twenty years. 1201. 65 WIPO Copyright Treaty, Art. 14 ("(1) Contracting Parties undertake to adopt, in accordance with their legal systems, the measures necessary to ensure the application of this Treaty.

(2) Contracting Parties shall ensure that enforcement procedures are available under their law so as to permit effective action against any act of infringement of rights covered by this Treaty, including expeditious remedies to prevent infringements and remedies which constitute a deterrent to further infringements.") infringements of copyright or related rights that have no direct or indirect motivation of financial gains, as well as (ii) wilful infringement for purposes of commercial advantage or financial gain. 66 This is targeted at businesses using pirated or unlicensed software and downloading and distribution of copyrighted works on the Internet. Previously, such infringing activities attracted civil liability only.

The United States has come under fire for its use of bilateralism to "ratchet up" the level of IP protection around the world. 67 In the case of Singapore, it should be pointed out that Singapore was hardly a "victim." Her agreement to the higher level of IP protection under the U.S.-Singapore FTA appears to be within the Government's agenda. This is evident from the concluding remarks made by the Minister for Law during the last set of copyright amendments made in the 1990s:

Sir, in closing, let me say that this [1999 Amendment] Bill reinforces Singapore's commitment to provide a strong intellectual property rights regime to encourage the growth of a knowledge-based or information economy and to promote e-commerce and creative innovation. As technologies are ever evolving and as new issues surface as a result of the constantly changing environment, I must say that this Bill is by no means the last word on the subject. We will continue to monitor international developments and we may have to propose further refinements to our copyright regime to cope with the technological developments as and when the need arises. We are committed to ensuring that our copyright law will be responsive to the changing needs of industries and we will continue to evolve to take into account new developments.

Even in the case of Singapore's agreement to accept a restriction to allow parallel imports in her patent law where pharmaceutical drugs are concerned, it should be understood within the wider context of the international debate on access to cheaper medicine in the Least Developed Countries 68 : Singapore's pro-parallel importation policy discourages drug companies from selling essential drugs cheaply in these poor countries because these drugs could leak into the higher-priced markets such as Singapore.

After the signing of the U.S.-Singapore FTA in May 2003 May , in 2004 May -2005 Singapore went about making the necessary changes to her IP laws to implement her obligations under the FTA. During this period, there were changes made which were unrelated to the FTA, many of which were to take into account further changes in technology (e.g., an exemption to allow the making of a copyrighted work for the purpose of simulcasting 69 ). Then, there were a few changes which were made to ensure that the expansion of copyright has not tilted too much in favour of copyright owners. In particular, Singapore jettisoned the British model of "fair dealing," which is a narrower defence tied to specific purposes (research or private study; criticism or review; reporting of current events) in favour of a wider, "open-ended" model that resembles the American "fair use" defence. 70 Figures 1 and 2 (Appendix) show that the number of patent and trademark applications filed in the first six years of the new millennium has already outstripped the number filed in the preceding 10-year period.

A thorny issue in the U.S.-Singapore IP relationship used to be what the United States perceived to be a lack of enforcement against IP piracy by the Singapore authorities. Thus, for example, the decision of the Office of the U.S. Trade Representative (USTR) to have Singapore remain on its Special 301 Watch List in 2000 cited the following reasons 71 : (i) the growing problem of optical disk piracy which resulted in open retail availability of pirated CDs, VCDs, and CD-ROMs in Singapore; 72 (ii) the "self-help" approach to IP enforcement adopted by the Singapore Government, which shifted the primary burden and expense of the investigating and prosecuting infringement to the IP right owners; and (iii) insufficient efforts at the borders to stop the in-flow and transhipment of infringing articles through Singapore.

In 2000, a unit called the IP Rights Branch was set up within the Specialised Crime Division in the Criminal Investigation to conduct raids against retail vendors of pirated works. In 2001, the Intellectual Property Office of Singapore (IPOS) was converted into a statutory board. Beyond performing the traditional regulatory functions of registering patents and trademarks etc., IPOS also plays a critical role in policy development, law reform, and educational activities (especially to raise 69 See Copyright Act 1987, Sec. 43A, 107A (introduced in 2004). 70 See id. at Sec. 35. This "open-end" model of fair dealing raises issues as to whether its scope is wider than that allowed by the "three-step" test in Article 13 of the TRIPS Agreement (requiring WTO members to "confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder" The IP enforcement efforts by the police are complemented by a stiff sentencing policy from the courts. In Ong Ah Tiong v. Public Prosecutor, the former Chief Justice Yong Yung How (who retired in April 2006) heard an appeal from an accused who had been sentenced by the District Judge to thirty-two months' imprisonment on three counts of trademark infringement. The District Judge had adopted two principles in coming to this sentence: first, custodial sentences for IP counterfeiting offences are the norm unless the quantity of infringing articles is quite small; and second, the starting tariff for offences involving 1,000 infringing articles or more would be a sentence of twelve months' imprisonment and upwards. In upholding this sentence, the Chief Justice expressed his approbation for such a stiff sentencing policy. In his view, this would be consistent with the Government's "strong efforts to promote Singapore as a regional intellectual property centre and the concomitant need to clamp down on piracy of intellectual property." 75 The new law criminalising "significant and wilful" infringements of copyright, which came into force on January 1, 2005, has already been invoked to prosecute businesses for using unlicensed software, 76 and individuals for distributing hundreds of pirated digital music files via the Internet. 77 As mentioned in the Introduction, Singapore is now amongst the top twenty-five countries in the world with the lowest software piracy rates. 78 Enforcement of IP rights via civil litigation is not very prevalent in Singapore, as the small numbers of reported judgments set out in the Figure 4 (Appendix) show. These numbers reflect in part the smallness of Singapore; even today, she only has a population of 4.6 million. Further, some cases alleging infringement of IP rights are resolved by mediation or arbitration. For example, a high-profile IP dispute that erupted in 1999 between Singapore Airlines (SIA) and British Airways (BA), in which BA alleged that SIA's first-class seat-beds infringed patents held by BA, was amicably settled after two days of settlement talks mediated by a retired judge at the Singapore Mediation Centre. 79 Settling disputes via alternative dispute resolution (ADR) is a reflection of the Asian values still held within Singapore, in spite of her highly industrialised economy. 80 Although the number of IP cases may not be large, as the IP infrastructure of Singapore has become more sophisticated, so has the nature of these cases. In the first years of the new millennium, the IP cases involved more complicated facts and issues. For example, there was a case involving a patent relating to the HIV-2 virus, 81 and another involving a patent relating to the "ThumbDrive"-a unitary storage device that is inserted into any universal serial bus (USB) socket, thereby becoming fully integrated with a PC or laptop. 82 Many would be familiar with the "ThumbDrive," but few would know that it is the subject matter of a patent registered by a Singapore company.

Singapore's ability to successfully implement IP protection is tied to Singapore's unique cultural and political landscape. The country enjoys a high level of respect for the rule of law and low rates of corruption. The public perception towards IP is generally favourable. This could in part be due to Government's promotion of IP as essential to economic survival. For example, according to a recent study of the Singapore consumer's piracy-related behaviour (e.g., in downloading pirated music or movies), 57% of the respondents believe that Singapore's economy would suffer if everyone continued to buy pirated CDs or download illegally. 83 This could also be due to the public's respect for IP based on the "just rewards" theory. Thus, in the study just mentioned, 82% of the respondents agreed that "people deserve to have their creations protected by intellectual property rights." Another reason Singapore has been able to accomplish long-range objectives is Singapore's exceptional political stability. The People's Action Party (PAP) has been the ruling party since the beginning of nationhood (1965), and it enjoys an overwhelming majority: there are only two opposition members in the entire 84member Parliament. This consistent majority means that legislators can take a longterm approach, and also that the process of lawmaking is relatively efficient.

IP laws are made in one of two ways. Statute-based laws go through the relatively efficient legislative process: (1) the first reading of the bill (where the bill is just introduced in Parliament); (2) the second reading of the bill (where the debates on the bill take place); and (3) the third reading of the bill (where any amendments to the proposed bill are introduced, and the bill is passed). Some IP laws are common-law based (e.g., passing off, breach of confidence), and are developed by judges.

nearly triple the level in 1990. Over half of R&D expenditures were in the private sector. 88

There is little doubt that a factor critical to the growth of IP in Singapore is the Government's firm belief that strong IP is very important-perhaps even necessary-in the plan to achieve the economic goals set for the country. Singapore's actual attainment of these goals certainly fuels this belief. From an economic perspective, the fruits of adopting a First World level of IP protection were almost immediate: soon after the signing of the U.S.-Singapore FTA, the big players who set up their development centres in Singapore in 2004-2005 included Lucasfilm (owned by George Lucas of Star Wars fame), Koei (a leading Japanese games company renowned for its Chinese and Japanese medieval action and strategy games), Motorola, Dell Computers, Novartis, Pfizer, and GlaxoSmithKline. It would be very naïve, though, to attribute Singapore's economic success solely (or even primarily) to a strong IP infrastructure. For example, when Lucasfilm announced its decision in 2004 to set up a digital animation studio in Singapore, while it cited Singapore's commitment to protect IP as a reason for choosing Singapore as its first place of venture outside of the United States, other reasons given were Singapore's education system, cosmopolitan environment, and pro-business policies. 89 In other words, a strong IP infrastructure is a very important factor but certainly not a sufficient factor to pull in FDI. 90 Externally, Singapore also gained some mileage in the international IP platform. In March 2006, the first WIPO diplomatic conference in Asia was held in Singapore, a conference which gave birth to the Singapore Treaty on the Law of Trademarks. The influence of Singapore in shaping IP law in the international arena may be seen from the fact that the judgment of a Singapore judge, Justice Andrew Phang (who is now a Justice of Appeal), in a trademark case involving shape marks was recently cited with approval and followed by the South African Supreme Court of Appeal. 91 What, then, is the impact of a strong IP regime on innovation amongst indigenous firms? It is generally believed that strong IP rights favour the incumbent MNCs in a country and disfavour independent development of technology by indigenous firms. Interestingly enough, in the case of Singapore, her strong IP **Where the patent is assigned to either: (a) a locally majority-owned Singapore firm; (b) a Singapore-based subsidiary of a foreign company or foreign-based company (usually a parent or headquarter company) that is known to have an operational presence in Singapore; or (c) a Singaporean tertiary institution or public research institute.

Toward a New Era of Objective Assessment in the Field of TRIPS and Variable Geometry for the Preservation of Multilateralism

TRIPS Flexibilities and Access to Medicines in Developing Countries: The Problem with Technical Assistance and Free Trade Agreements

The author's earlier writings on this subject matter also contain some tinges of indignation. See, e.g., Ng-Loy Wee Loon, The IP Chapter in the US-Singapore FTA

For further discussion of this issue, see Ng-Loy Wee Loon, Parallel Importation of Pharmaceuticals: DOHA vs. Free Trade Agreements

SLR 587

Firm with Unauthorized Software Fined $30,000, STRAITS TIMES

Two Jailed for Sharing Pirated Music Online, STRAITS TIMES

It was reported that the settlement was achieved through the mediation of the president of the business association of which the plaintiff and the defendant were members. Another area of disputes which may involve an IP right (trademarks), namely, disputes relating to registration and use of ".sg" Internet domain names, is governed by the Singapore Domain Name Dispute Resolution Policy

CONSUMER AWARENESS, MOTIVATION & ATTITUDES (IP Academy

The Force is with Singapore and Lucas Studio Soon, STRAITS TIMES

It must be emphasised that strong IPRs alone do not sufficiently generate strong incentives for firms to invest in a country. If that were the case, recent FDI flows to developing economies would have gone largely to sub-Saharan Africa and Eastern Europe. In contrast, China, Brazil, and other high-growth, large-market developing economies with weak IPRs would have attracted less FDI

Bergkelder Bpk. v. Vredendal Koöp Wynmakery

stunted the development of technology by indigenous firms. In fact, a study which tracks the patenting trend in Singapore from 1976 to 2004 reveals a notable increase in the number of Singapore-related UPTO patents since 1996, 92 which marks the start of Singapore's aggressive promulgation of IP laws. The relevant statistics are

Singapore remains a net-importer of IP. For example

Knowledge Sources of Innovation in a Small Open Economy: The Case of Singapore

See the Minister's speech made at the launch of the IP-CEP (Creation-Exploitation-Protection) Programme for local enterprises on

As in many Asian cultures, education is highly valued in Singapore. Six years of primary education are mandatory. Primary schools are bilingual, in English and the child's native language (Chinese, Malay, or Tamil). 87% of these students go on to receive secondary education or higher. In lieu of higher education, students may enroll in an Institute of Technical Education to earn certificates in technical fields. Tertiary education is available at the National University of Singapore (NUS), the Nanyang Technological University (NTU), Singapore Management University several polytechnics (an American-style business management school), and the National Institute of Education. In 2006, universities graduated 10,428 students, polytechnics graduated 16,715 students, and the National Institute of Education 2,004 students. 84 The most popular fields by far were engineering, information technology, and business and administration. 85 Both NUS and NTU are research-intensive institutions. NUS contains dozens of research centres and has affiliations with many national centres as well. The "NUS Enterprise" program promotes industry engagement and entrepreneurship; it includes an Industry Liason Office specifically charged with protecting the university's IP and promoting collaboration between the university and industry. 86 NTU has six "clusters" of research centres in Intelligent Devices and System, Nano and Microfabrication, Biomedical and Pharmaceutical Engineering, Advanced Computing and Media, Information and Communications, and Environmental and Water Technologies. NTU also boasts "30 spin-off companies specialising in ecommerce, IT, electronics and manufacturing process." 87 The Agency for Science, Technology and Research (ASTAR) is the national research body that oversees public sector R&D activities in Singapore. It not only manages R&D activities, but contains education and commercialisation arms, as well. It also conducts and publishes an annual survey of R&D in Singapore. According to that survey, in 2004 R&D expenditures amounted to 2.25% of GDP,