Downloading anime may not be illegal

I've been waiting for someone in our local papers to write a different perspective to the Odex saga. I had enough of Odex saying downloading is bad, downloading affects their sales number, blah, blah, blah. So it's a welcomed surprise today to read a Straits Times (yup ST!) story by writer Andy Ho. In it, he says that downloading fansub anime may not be illegal. From Asiaone:

Under Singapore's law, copying is permitted for educational and news reporting purposes (as well as other specified ones). But only an unimaginative reading of the law would conclude anime downloading is clearly illegal.

A 2004 amendment to the copyright law here introduced a new, open-ended exception to make it possible for copying - in whole or part - to be construed as fair use depending on five factors.

First, is the work copied creative in nature or not (like a phone directory)? Secondly, how much is copied? Thirdly, is the copying for profit?

Clearly, anime is creative work and fans copy the whole work, but they don't do it for profit. Even Article 38 of Japan's own copyright law allows parties to 'distribute by wire a work already broadcast for non-profit purposes'.

Fourthly, can the work be obtained within a reasonable time at an ordinary commercial price? The most popular anime titles take about six to eight months to be released here on VCDs or DVDs but they are now competitively priced when they do appear here.

The fifth and final consideration is the effect of copying upon the work's potential market here. That is, the anime firm must show that future harm is very likely, not that actual harm has occurred. Local fans say they do go online to buy anime DVDs from foreign distributors. US experience suggests that this is not all empty talk.

Fan activity is more akin to taping a show from TV than pirates doing it off a cinema screen. Clearly, taping movies off TV has not led to pervasive and huge home libraries and history shows that sales of movies on tape and DVD have not been impacted by the video cassette recorder.

The upshot: Fan activities could well be building a market for anime here.

Previously:
Odex wins suit against Starhub and stands to get millions from anime fans
Hardware Zone forumers exposed Odex director?
Odex vs Singapore Anime fans