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The National Arts Council (NAC)’s Arts Resource Hub (ARH) aims to support arts Self-Employed Persons (SEPs) and freelance practitioners in Singapore to unlock new opportunities and grow meaningful careers for the long term. ARH aggregates useful key points to note about written contracts, Intellectual Property (IP) and copyright, and how to set up an arts business entity for arts SEPs and freelancers who are independent contractors that provide a service to hirers at their own risk.
It is best to document agreed on terms and conditions between you and your hirer through a written contract, to avoid disputes later. Before a contract is enforceable, you must be clear of the following:
a) Your hirer has offered the project to you with agreed and clearly stated terms;
b) You have accepted the agreed and clearly stated terms in writing; and
c) There is a clear intention from both parties to create this legal relation.
The signing of a contract typically involves the handwritten signatures of you and your hirer. However, the Electronic Transactions Act (Cap.88, 2011 Rev.Ed. Sing.) allows for electronic records to be used in expressing and accepting an offer to form a binding contract. Arts SEPs and freelancers must be careful with off-hand responses to job offers or terms within the job offer discussed via email or messaging platforms such as Whatsapp and Telegram, as the offer may be a valid offer and your response may be taken as a binding and enforceable written agreement.
Boilerplate Legal Clauses
The term ‘boilerplate clauses’ refers to relatively standard clauses which tend to be agreed upon between you and your hirer with little or no negotiation.
- Exclusion of Liability or Limitation of Liability
This is a clause in your contract that excludes or limits your hirer’s liability for anything from breach of contract to negligence. Hence, always negotiate for a fair limit to your liability before signing on the dotted line. That said, in Singapore, the Unfair Contract Terms Act (Cap.396, 1994 Rev.Ed. Sing.) also acts as a safeguard to protect persons in a weaker bargaining position.
- Dispute Resolution/Recourse
This is by far the most important clause to have in any contract as it stipulates how any dispute that may arise between you and your hirer will be resolved. Mediation is usually the least expensive and the least time-consuming amongst the various forms of dispute resolution.
- Force Majeure
This clause protects both you and your hirer against a failure to perform or fulfil contractual obligations arising from unforeseeable circumstances beyond the control of either of you, such as natural disasters, like an earthquake or flood. This clause may also include how your fees or compensation will be handled in such cases.
- Governing Law
A governing law clause specifies which laws will govern the interpretation and enforcement of the terms of your contract. The choice of law usually reflects the country where you or your hirer is situated in or where the subject matter of the contract is situated.
It is recommended that you and your hirer first use negotiation or mediation with an aim to achieve an amicable resolution to the dispute, should it happen. If you and your hirer are unable to resolve this amicably, you may wish to turn to the Dispute Resolution/Recourse clause in your written contract.
Primarily, there are three types of dispute resolution – Mediation, Arbitration and Litigation. Always resolve any dispute through mediation or arbitration first, with litigation as your last resort as it is costly and time-consuming.
Breach of Contract
If you breach your contract, and depending on the seriousness of your breach, you may suffer termination by your hirer, a demand for damages, or worse, being sued and taken to court. If you breach your contract because of reasonable causes, e.g. discovering you have a critical illness, then there might be room for negotiation with your hirer. However, if negotiations fail between you and your hirer, seek third party assistance, e.g. through the use of mediation services.
If your hirer breaches the contract e.g. failing to pay you on time or failing to pay you the agreed amount, exercise the Dispute Resolution/Recourse clause in your written contract. Generally, the recourse available to you includes:
a) termination of contract;
b) claim for damages;
c) specific performance of an act (which is usually a term stated in the contract) e.g. to return all copyrighted materials to you;
d) injunction requiring a party to do or cease to do an action.
- Sample contract clauses developed by Mr Ng Joo Khin of Morgan Lewis Stamford LLC
- For a sample of other forms of written contract e.g. Letter of Agreement or Performance Agreement, click here.
- For a sample of the Dispute Resolution/Recourse clause, click here. This was extracted from the Advocates for the Arts – A Legal Handbook for the Creative Industries developed by the Law Society Pro Bono Services. For more information on their services, visit their website here.
Update as of 11 February 2022: Singapore's revised Copyright Act, in force from 21 November 2021, replaces the previous Copyright Act (Cap. 63). The factsheet explains key changes that businesses operating in Singapore should note, in particular:
1. New licenses that may be required when using copyright-protected sound recordings;
2. Changes to who owns copyright in the absence of a contract; and
3. New obligations to identify creators and performers when using their content publicly
For more information, please read the Intellectual Property Office of Singapore’s factsheet here.
Intellectual Property (IP) refers to creations of the human mind. Protecting your creations, and where necessary, registering them with the Intellectual Property Office of Singapore (IPOS) can save you the effort of having to prove that the creations are originally yours when someone plagiarises your work. Once your work qualifies as a particular type of IP, you can commercialise your rights in this “IP” by licensing, assigning or selling it to others.
There are several types of IP for different creations, each governed by different laws in Singapore.
Copyright Protection in Singapore
Copyright protects a wide range of works. When you own the copyright to these works, you have the exclusive and assignable legal right for a fixed number of years to print, publish, perform, duplicate or make a recording of that literary, artistic or musical material. You control the use and commercial exploitation of these works and no one can use the copyrighted work without your prior permission.
In Singapore, while we do not have a formal copyright registration system, you enjoy automatic copyright protection as soon as your work is created or expressed in a form which is tangible e.g. when a play is performed. However, ideas or concepts, procedures, methods or works which have yet to be made in tangible form are not protected by copyright.
Copyright for Joint or Collective Works
For collaborations, the work is considered a work of joint authorship where each joint owner holds an undivided interest in the piece of work. This means you or your fellow collaborators cannot grant a license under the copyright without the consent of every party involved in the creation of this joint work.
In a collective work, each author creating his or her own piece of work holds the copyright to his or her individual work. For example, a collection of short stories by different authors will represent a collective work. Therefore, each author would have individual copyright over the respective short story written by him or her.
Copyright for Commissioned Works
The general rule is that an author, creator or artist of a piece of work is the first owner of any copyright. However, subject to a legal contract agreed between the arts practitioner and the commissioner, the copyright in certain* commissioned works like portraits, photographs or engravings may belong to the commissioner of those works rather than the arts practitioner. However, the work should be used for the purposes envisioned in the commissioning arrangement. The artist or creator retains the right to stop the commissioner or any persons or companies from using the work contrary to its original purpose.
*For other types of commissioned works, the ownership belongs to the commissioned party unless both parties (the commissioner and the commissioned party) agree otherwise.
Validity of Copyright Protection
Copyright provides creators with legal rights over their creative works for a specified time period. Once that period of time is over, the creative work is free to be “utilised” by the public. This period of protection varies according to the type of copyright work you own:
- Literary, dramatic, musical and artistic works receive copyright protection for 70 years from the end of the year in which the author died. If the work is published after the death of the author, it will last 70 years from the end of the year in which the work was first published.
- Published editions (i.e. the style, arrangement and appearance of the letters, numbers and symbols) of literary, dramatic, musical and artistic works maintain copyright for 25 years from the end of the year in which the edition was first published.
- Sound recordings and films receive copyright protection for 70 years from the end of the year in which the sound recording or film was first published.
- Broadcasts and cable programmes receive copyright protection for 50 years from the end of the first year of making the broadcast or cable programme.
- Performances maintain copyright protection for 70 years from the end of the year of the first performance.
Your copyright is infringed when someone uses or makes a copy of your copyright work without first obtaining your permission. You can take legal action against this person, or as a preferred first step, negotiate and mediate through a neutral third party to resolve your copyright dispute.
In brief, here are a few remedies:
a) You can seek action to stop the infringing action;
b) You can claim for damages for the loss suffered; or
c) You can claim the profits gained by the infringing party.
However, as IP protection is territorial, this means that IP protected in Singapore does not enjoy the same recognition or protection overseas.
If you wish to get some preliminary advice on available remedies or enforcement actions, you can speak with external legal consultants at the IPOS IP Legal Clinic. You can make an appointment here.
Obtaining Consent from a Copyright Owner
If you are intending to use part of a copyrighted work, you will need to contact the copyright owner for consent and to negotiate for a license to utilise the copyrighted material. Alternatively, a license may be obtained through a legally authorised collective management organisation, e.g. the Composers and Authors Society of Singapore (COMPASS), Recording Industry Performance Singapore Pte Ltd, Motion Picture Licensing Company Singapore Pte Ltd, to list a few.
If you are using material found on Creative Commons (CC), there is no further need to seek explicit permission from the copyright owner, as long as the use conforms to the terms under which the license was obtained.
Creative Commons and Copyleft
Creative Commons is a not-for-profit organisation that provides licenses and tools to permit copyright owners to determine the terms under which their material may be used worldwide. It gives everyone from individual creators to large companies and institutions a simple, standardised way to grant copyright permission to their creative work. You are able to use these materials without the need to seek further permission so long as the use conforms to the terms under which the licenses were obtained.
Copyleft, distinguished from copyright, is the practice of offering people the right to freely use a created work, or distribute copies or modify it (in other words, create a derivative work), with the stipulation that the same rights that govern the original work apply to the derivative works.
Considerations for Online Content
Before you copy or use any material online, always check if the website has Terms and Conditions governing the use of content, which tend to be found at the bottom of the Homepage. If so, you might need to write to the website owner for permission before you use the content. For software content, the terms of the license are typically contained within the headers of the code itself, and you should make sure you understand the license terms before integrating that piece of software into your own codebase.
Other useful related resources include an Event Licensing Guide introducing the different types of permits and licenses required when organising an arts event, under the existing licensing framework.
While you may opt to work as an independent freelancer, if you are considering setting up an arts business, here are some possible considerations and practicalities on how to do so.
Arts Business and the Type of Legal Entity
It is possible to manage your arts projects without a formal legal structure, whereby you exercise your profession under your full name. Without a legal structure you have full flexibility, for example, to not hold meetings in a specific format or pay any registration or annual fees.
When your projects grow larger and more complex, you may consider adopting a legal structure for your arts business. Choosing the most appropriate structure is dependent on the aim of the business, its mission, objectives and priorities. Do keep in mind that certain legal structures limit your liabilities and protect your personal assets, while some government grants and concessions are only available to organisations that exist as formal legal entities. For more information on the types of legal structures and the pros and cons, click here.
Registering an Arts Business Entity
Registration of most legal structures is done through the Accounting and Corporate Regulatory Authority (ACRA). You can register through ACRA by submitting an application online via Bizfile and paying the applicable registration fee.
ACRA’s website contains useful know-how on registration of a local business. For registration of a Society, you can refer to the Registry of Societies; for registration of a Charity, you can refer to the Charity Portal; and for registration of a Co-operative, you can refer to the Registry of Co-operative Societies. Alternatively, you may wish to engage the services of a professional firm to submit your online application at a reasonable fee.
Selecting a Name for an Arts Business Entity
You are generally free to select any name for your arts business as long as the Accounting and Corporate Regulatory Authority (ACRA) is of opinion that the name is not deemed “undesirable”, i.e. obscene, offensive or vulgar; identical to that of another business; identical to a name already reserved by another business; or a name that the Minister of Finance will not accept, e.g. Temasek.
For more information on how to choose a business name via ACRA, click here.
Financing an Arts Business Entity
Possible avenues of funding include:
- Apply for a grant
- Get a loan
- Sell part of your business
- Seek crowdfunding