MS Explains: Changes to Copyright Act don't mean you lose all rights to your wedding photos

What do the new changes to the Copyright Act mean to the average Singaporean? We break it down.

Jason Fan | September 24, 2021, 02:04 PM

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Recently, several amendments were made to the Copyright Act in Singapore.

One change in particular stood out to the public: Soon, creators of works like photographs, portraits, engravings, sound recordings and films will receive the copyright to their work by default, even if they were commissioned to do the work.

With the new rules expected to kick in around November 2021, panic soon ensued within the online space, as many Singaporeans began fearing what the new changes meant, especially with regard to wedding photography.

Will photographers be given the right to do whatever they want with photos they take on the job? Will the price of photography packages increase, due to the need to negotiate for the rights with the photographer? Why were these changes even necessary?

Mothership spoke to the Intellectual Property Office of Singapore (IPOS), to find out more about the upcoming changes.

What copyright really means

Before we get into the changes, it's important to understand what owning the copyright to something actually means.

According to IPOS, when an individual owns the copyright to a work, he or she controls the use and commercial exploitation of these works.

This means that the individual has the right to prevent others from reproducing, publishing or adapting their work.

This also allows the individual to commercialise their copyright, by selling or leasing it.

Leasing your copyright means you allow others to use your work for an agreed time period, while retaining full control over the copyright, and selling your copyright means you no longer own any rights to your work.

A copyright owner can also give someone permission to use the copyrighted material, by granting them a license.

However, there are certain exceptions to copyright protection.

For example, educational institutions in Singapore can make copies of copyrighted work within certain limits, if it is for educational purposes.

Members of the public may also use copyrighted work without asking for permission under a "fair use" exception, such as reviewing a piece of work, or using content for reporting current events.

For example, you're generally allowed to post movie screenshots (or even short clips) on your blog if you're reviewing the movie, although it won't be legal for you to post the entire movie online.

Are costs likely to increase?

With the definition of copyright out of the way, it's time to correct some common misconceptions regarding the new amendments to the law.

For example, some people believe that the new changes will allow photographers to charge consumers more money, in order to retain the rights to their photos.

However, this is unlikely to be the case, given the abundance of photographers offering their services in Singapore.

IPOS noted that photography costs are a "factor of demand and supply", and that consumers can continue to negotiate with their photographers for the rights to their photos, should they wish to retain them, before engaging their services.

Simply put, if photographers use this opportunity to raise prices, they are likely to lose customers to their competitors, given how competitive the industry is.

Can the photographer do whatever he wants with my photos?

Another misconception is that failing to negotiate for the copyright of one's photos will be an unmitigated disaster, as it would allow photographers to do whatever they want with commissioned photographs.

However, there are actually very few things a photographer can legally do with their client's commissioned photographs, even if the photographer owns the copyright to them.

This is because the Copyright Act operates concurrently with a number of other laws, in order to control how a client's photos may be used.

For example, even if a wedding photographer owns the full copyright to his client's photos, he may not publish the photos without the consent of the persons within the images, as long as they may be identified.

This is because such photos constitute personal data under the Personal Data Protection Act (PDPA).

In fact, even if these persons give their consent, they can subsequently withdraw their consent for any reason, and the photograph will have to be taken down.

"In other words, the change in law on default ownership of commissioned photographs does not otherwise change what photographers can or cannot legally do with the photographs," said IPOS.

Many contracts already give the photo's rights to the photographers

Those who may have engaged the services of a studio for wedding or portrait photography may not be aware that their contracts with the studio may already contain terms allowing the photographer to use the photographs for his or her portfolio, or for advertising purposes.

This means the new changes matter even less, given how many people may have inadvertently signed away the rights to their photos without even realising it. 

According to IPOS, clients are free to negotiate to delete this right before signing the contract, or to amend the terms to require the photographer to seek his or her approval before using the photographs for their own purposes.

In short, read your contract carefully, and negotiate accordingly, if you wish to retain your rights.

Ok, but what if I don't negotiate for my rights?

Most Singaporeans are unlikely to read their contracts in full (although they probably should), and one worry remains: What if an individual fails to negotiate for the copyright of his wedding photos, and signs an agreement giving all rights to his photographer before he realises it?

On the surface, this may seem like a really bad situation to be in. The individual seemingly paid money for a photographer to take pictures of his big day, and he won't even have the rights to his own photos.

However, this is far from the truth, as there is a huge difference between owning copyright, and the right to use a commissioned work.

While this individual may not have copyright of his wedding photos (because he failed to negotiate for them), it doesn't mean that all is lost.

This is because he still has the right to use the work for the purposes for which it was commissioned.

"For wedding photography, the couple, even if they do not own the copyright to the photographs, will generally still have the right to use the photographs for their personal use (for example, reproducing for keepsake, sharing with family members, and sharing on social media), which are typical purposes for which such photographs are commissioned," said IPOS.

Basically, even if you don't own copyright to your images, most photography contracts will allow you to use your own photos for a variety of purposes.

For most people, obsessing over the copyright of your photos is probably not necessary.

And for those who've already signed, or will be signing contracts prior to the changes, you don't have to worry, as the amended Copyright Act will not change your rights.

Basically, prior to the amendments kicking in, you own all the rights to photographs you commissioned — unless you sign (or signed) a contract which explicitly gives the copyright to your photographer.

So whether rights belong to you, or to the photographer, these rights will not be affected after the amendments take effect.

Why were the changes necessary?

Wait a minute. If nothing much has really changed, then why were the changes necessary in the first place?

According to IPOS, the amendments were proposed to recognise the creative efforts and contributions of all content creators, including photographers.

Currently, creators of other commissioned works such as songs and books already receive copyright by default, unless the creators agree to have a different arrangement under their contract.

The new amendments, explained IPOS, were simply made to standardise copyright ownership rules in Singapore, and put creators of commissioned photos, portraits, engravings, sound recordings and films on an equal footing with other content creators.

IPOS also added that this change is in line with the copyright laws of major jurisdictions around the world, including the U.S, UK and Japan.

Photography was different in the 1950s

And if you're wondering why this wasn't standardised in the first place, it turns out that there are legacy reasons for why copyright protection for photographs and film is different from other works, like books and songs.

IPOS explained that difference in treatment of the different types of works dates back to the 1950s, where commissioned photographs and portraits were unlikely to have value to people who were not the commissioner.

Photography equipment back then was expensive, and few people, other than professionals, could afford the equipment needed to take photographs in the first place.

Hence, it made sense at the time for the copyright to be vested in the commissioner by default, given how people paid exorbitant sums to have their portraits taken.

However, with modern technology in play, anyone with a smartphone can be a photographer or filmmaker, and professional equipment is also more accessible to the public.

These new changes will help protect the rights of individual freelancers and content creators from small- and medium-sized enterprises, who may not have as much bargaining power when negotiating for the rights to use photos they've taken to promote their own services.

What to do once the changes kick in

Let's say you're in the market to get some wedding photos taken after the new changes to the Copyright Act kick in, and you're still unsure of what you have to do to in order to protect your interests.

Here's are some steps that should be helpful:

1. Decide whether you need the copyright to your photos

Before you even look around for potential photographers, you need to ask yourself how important it is for you to retain the copyright to the images taken.

Remember, even without owning the copyright, you're able to reproduce images for your own keepsake, share them with family and friends, or even on social media.

If it's really important that you own the copyright to your photos, you should then negotiate with the photographer directly.

2. Discuss the rights with your photographer

It's common practice for photographers to use photos they take in their own portfolio, or for advertising purposes, and it's often included in the contract signed with their customers.

If you're not comfortable with your photos being used in these ways, you should discuss this with your photographer before signing the contract.

Perhaps you have no issues with them including the photos in their portfolio, but you're against having your photos plastered on billboards to advertise their services.

Simply let them know, and get to an agreement before proceeding.

3. What to do when someone infringes on your rights

If you own the copyright to your images, and an individual decides to use your photos without your permission, you should reach out to them and request them to stop.

You can either request a licensing fee to use your photos, or ask them to stop using them altogether, and remove the photos from any platform.

Depending on what happens next, you might have good reason to get a lawyer and/or start legal action. However, it is not uncommon for individuals to resolve copyright disputes through private negotiation, according to IPOS.

To avoid costly legal fees, Singaporeans, Permanent Residents (PRs) or Singapore-registered businesses also have the option to sign up for IPOS's IP Legal Clinics, which provide a one-time 45-minute legal session, that is fully reimbursable by IPOS.

During these sessions, individuals can seek advice on what to do in the case of copyright disputes, and decide on what action they wish to take on the person infringing on these rights.

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Mothership Explains is a series where we dig deep into the important, interesting, and confusing going-ons in our world and try to, well, explain them.

This series aims to provide in-depth, easy-to-understand explanations to keep our readers up to date on not just what is going on in the world, but also the "why's".

Top image via Unsplash.