of copyright in the object becomes far more uncertain due to the lack of clear guidelines. Statutory authority uses extremely general and circular language – ‘sculpture’ is defined as including ‘a cast or model for the purposes of sculpture’.15 Singaporean courts have not had the opportunity to deal with this issue, nor have other Commonwealth jurisdictions developed a clear test to deal with this issue. As the digitisation of three-dimensional objects becomes more prevalent, this issue of ambiguity will rise in prominence. It is preferable to set out clear guidelines through legislative amendments, since the tendency of parties will be to err on the side of safety in light of the severely punitive lawsuits pursued by the entertainment industry over copyright infringement – neglecting this problem will stifle growth in the industry. Definitions of the terms ‘sculpture’ and ‘works of artistic craftsmanship’ have been considered by the courts in UK, but have not lead to a clear test on how to assess the subsistence of a copyright in objects which possess both functional and artistic elements. The definition of the word ‘sculpture’ in the Copyright, Designs, and Patents Act 1988 has been considered most recently in Lucasfilm Ltd v. Ainsworth.16 The case featured a dispute over the reproduction of Imperial Stormtrooper helmets from the first Star Wars movie, and one of the key issues was whether the helmets qualified as a sculpture for the purposes of copyright. It was concluded that the helmets were primarily utilitarian and not artistic; the reason being that the helmets were utilitarian in the context of the film with an analogy being drawn to the use of a 20th century military helmet in the production of a film. The decision seems somewhat arbitrary, since there is significant merit to the opposing view that the helmet had been created with the objective of making a strong impression, given that it had undergone several adaptations before being finalised. Ultimately, consideration of whether the helmet qualified as a ‘sculpture’ for the purposes of copyright was extremely subjective, and up to the personal interpretation of the judge which was not disclosed. The term ‘works of artistic craftsmanship’, which is broader and includes works with more functional elements, is considered in the leading case of Hensher v. Restawile.17 The case was concerned with whether the prototype design of a furniture set qualified as a work of artistic craftsmanship which would allow copyright protection. While the Lords each attempted to set out a definition, there were multiple different opinions on essential elements for consideration – not only is there a lack of single cohesive test, the case itself illustrates the difficulty in attempting to set out a test where art or artistic elements are concerned. It is thus seen that in objects where both artistic and functional elements reside, there is a large degree of uncertainty as to the value placed on the elements that ultimately determine whether copyright subsists. Uncertainty in the subsistence of copyright creates a significant bar to the growth of the industry, and also disrupts the delicate balance by empowering rights holders disproportionately. Where ambiguity arises regarding copyright, individual users (especially those at home) will tend to accept an assertion of rights made by those claiming to be the rights holders online. This is the result of the entertainment industry having brought lawsuits against end users over the infringement of copyright through file-sharing. Past cases in Singapore include legal action pursued by Odex18 (an anime distributor) and more recently, by 15 Copyright Act (Cap 63, 2006 Rev Ed) s 7(1) 16 Lucasfilm Ltd and others v Ainsworth and another [2011] UKSC 39, [2012] 1 AC 208 17 George Hensher Ltd. v Restawile Upholstery (Lancs.) Ltd [1976] AC 74 (HL) 18 Nate Anderson, ‘RIAA-style lawsuits hit Singapore anime scene’ (ArsTechnica,28 August 2007) <http://arstechnica.com/tech-poli-
the copyright holders of the movie Dallas Buyers Club.19 Similar actions overseas by rights holders in the film and music industry against individual end users for the purposes of deterrence have conditioned users to avoid potential lawsuits, given that the amount pursued in relief is often a heavy penalty the individual user cannot afford. Home users are thus especially quick to assume the subsistence of a copyright in the face of another party asserting such rights – one such case has already occurred in the 3D printing hobbyist community. A user uploaded a 3D model of an optical illusion on Shapeways, a website which acts as a marketplace for designers of 3D printed objects. A similar model was later uploaded by another user on a different site, leading the original user to send a takedown request to the website administration, which duly complied.20 The issue overlooked by those involved was that the subsistence of the copyright in the 3D model was tenuous – the optical illusion was merely a three-dimensional interpretation of one that had been around for decades, and even so, optical illusions themselves are potentially beyond the scope of copyright.21 This sort of conditioned acceptance of copyright subsistence is detrimental for public interest, preventing potentially lawful consumption of content. In this way, the ambiguity of copyright subsistence in three-dimensional works eventually poses a barrier to future growth of the industry. It is therefore desirable to provide clear guidelines for determining copyright subsistence in such works, which will in turn incentivise further innovation through greater adoption and usage. INDUSTRIAL DESIGNS The Registered Designs Act (Cap 266, 2005 Revised Edition) fills the gap left by copyright in relation to artistic works, protecting any ‘shape, configuration, pattern or ornament applied to an article by any industrial process’.22 Examples of registered designs include the shape of a chair23 and the shape of an orchid as applied to jewellery.24 The issues faced here are similar to those in patent legislation, since the act does accommodate for digitisation. Potential home usage of 3D printing that falls under the domain of industrial designs is seen in the printing of replacement parts and jewellery. The individual user at home is exempted from the scope of design rights conferred by the Registered Designs Act. This is due to effect of section 30(5)(a), which states that there is no infringement so long as the making of the object is for a ‘private non-commercial purpose’. This can be interpreted to the effect that home users will not be liable for any infringement as long as the making of an object where there is a registered design is solely for private consumption. The act is geared towards protecting the commercial interests of the owner of the registered design, as seen in the exclusive rights granted to the owner by section 30(1) which have regard to the various commercial activities of sale, hire, trade and business. Similarly, the use of both terms, ‘private’ and ‘noncy/2007/08/27/riaa-style-lawsuits-hit-singapore-anime-scene/> accessed 20 April 2015 19 Irene Tham, ‘Dallas Buyers Club case: US studio says blocking piracy sites not an effective method to protect copyright’ (The Straits Times, 14 April 2015) <http://www.straitstimes.com/news/singapore/more-singapore-stories/story/dallas-buyers-club-case-us-studio-calls-anti-piracy-laws> accessed 20 April 2015 20 Michael Weinberg, ‘What’s the Deal with Copyright and 3D Printing?’ (Public Knowledge, 29 January 2013) <https://www.publicknowledge.org/ files/What%27s%20the%20Deal%20with%20Copyright_%20Final%20version2. pdf> accessed 30 March 2015 21 Ibid. 22 Registered Designs Act (Cap 266, 2005 Rev Ed) s 2(1) 23 Sebel Furniture Ltd v TiongHin Engineering Pte Ltd [1999] 2 SLR 662 24 Risis Pte Ltd v Polar Gems Pte Ltd and Others [1995] 1 SLR 88
32