Copyright Laws and Exclusive Rights

Copyright is a set of exclusive rights granted to the author or creator of an original work, including the right to copy, distribute and adapt the work. Copyright does not protect ideas, only their expression. In most jurisdictions copyright arises upon fixation and does not need to be registered. Copyright owners have the exclusive statutory right to exercise control over copying and other exploitation of the works for a specific period of time, after which the work is said to enter the public domain. Uses covered under limitations and exceptions to copyright, such as fair use, do not require permission from the copyright owner. All other uses require permission. Copyright owners can license or permanently transfer or assign their exclusive rights to others.

The British Statute of Anne 1709, full title “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned”, was the first copyright statute. Today copyright laws are partially standardized through international and regional agreements such as the Berne Convention and the WIPO Copyright Treaty. Although there are consistencies among nations’ copyright laws, each jurisdiction has separate and distinct laws and regulations covering copyright. National copyright laws on licensing, transfer and assignment of copyright still vary greatly between countries and copyrighted works are licensed on a territorial basis. Some jurisdictions also recognize moral rights of creators, such as the right to be credited for the work.

Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend on several factors, including the type of work (musical composition or novel), whether the work has been published or not, and whether the work was created by an individual or a corporation. In most of the world, the default length of copyright is the life of the author plus either 50 or 70 years. In the United States, the term for most existing works is for a term ending 70 years after the death of the author. If the work was a work for hire (those created by a corporation) then copyright persists for 120 years after creation or 95 years after publication, whichever is shorter. In some countries (for example, the United States and the United Kingdom), copyrights expire at the end of the calendar year in question.

The length and requirements for copyright duration are subject to change by legislation, and since the early 20th century there have been a number of adjustments made in various countries, which can make determining the duration of a given copyright somewhat difficult. For example, the United States used to require copyrights to be renewed after 28 years to stay in force, and formerly required a copyright notice upon first publication to gain coverage. In Italy and France, there were post-wartime extensions that could increase the term by approximately 6 years in Italy and up to about 14 in France. Many countries have extended the length of their copyright terms (sometimes retroactively). International treaties establish minimum terms for copyrights, but individual countries may enforce longer terms than those.

The types of work which are subject to copyright has been expanded over time. Initially only covering books, copyright law was revised in the 19th century to include maps, charts, engravings, prints, musical compositions, dramatic works, photographs, paintings, drawings, and sculptures. In the 20th century copyright was expanded to cover motion pictures, computer programs, sound recordings, choreography and architectural works.

COPYRIGHT LAWS IN MALAYSIA

The Copyright Act 1987

Copyright protection in Malaysia is governed by the Copyright Act 1987 which provides comprehensive protection for copyrightable works. The Act outlines the nature of works eligible for copyright (which includes computer software), the scope of protection, and the manner in which the protection is accorded. A unique feature of the Act is the inclusion of provisions for enforcing the Act, which include such powers to enter premises suspected of having infringing copies and to search and seize infringing copies and contrivances. A special team of officers is appointed to enforce the Act.  Malaysia is a signatory of the Berne Convention. Foreign works of non-Berne member countries are also protected if they are made in Malaysia and are published in Malaysia within thirty days of their first publication in the country of origin.

Information technology has challenged the traditional concept of copyright protection.  The Amendment Act, which amended the Copyright Act 1987, came into force on the 1st April 1999. This Act seeks to update the law on copyright.  Amongst other things, the Amendment Act makes unauthorized transmission of copyright works over the internet an infringement of copyright.

The definition of a literary work now includes table or compilations “whether or not expressed in words, figures or symbols and whether or not in a visible form”. The owner of copyright in a work including a derivative work, will have the exclusive right to control “the transmission of a work through wire or wireless means to the public, including the making available of a work to the public in such a way that members of the public may access the work from a place and at a time individually chosen by them”.

It is also an infringement of copyright to circumvent any effective technological measures aimed at restricting access to works, removal or alteration of any electronic rights management information without authority, or distribution, importation for distribution or communication to the public, without authority, works or copies of works in respect of which electronic rights management information has been removed or altered without authority”. These provisions are aimed at ensuring adequate protection of intellectual property rights for companies investing in the IT and multimedia environment.

The Copyright Act 1987 provides for the enforcement of the law by the Intellectual Property Corporation of Malaysia (MyIPO), an agency under the Ministry of Domestic Trade, Co-operation and Consumerism , apart from the Police. The Act also provides the necessary clout to the enforcement agencies to effectively carry out anti-piracy measures.  The Malaysian Copyright Act provides for a Copyright Tribunal whose function is to grant Licenses to produce and publish in the National Language a translation of a literary work written in any other language. The Act is currently amended to expand the power of the tribunal to include arbitration of disputes relating to use of copyright works.

Copyright protection in Malaysia is governed by the Copyright Act 1987.  In Malaysia, there is no system of registration for copyright.  The Copyright Act 1987 provides for the enforcement of the law by the Intellectual Property Corporation of Malaysia (MyIPO), an agency under the Ministry of Domestic Trade, Co-operation and Consumerism, apart from the Police.  The Act also provides the necessary clout to the enforcement agencies to effectively carry out anti-piracy measures.

Works are protected by copyright

A work that is eligible is fulfillment of the following conditions:

Sufficient effort been expended to make the work original in character.

The work has been written down, recorded or reduced to material form.

The author is a qualified person or the work is made in Malaysia or the work is first published in Malaysia.

Works eligible for protection are:

Literary works

Musical works’

Artistic works

Films’

Sound recordings

Broadcasts

Derivative works

Published editions of works

Works shall be protected irrespective of their quality and the purpose for which they were created.  Copyright protection shall not extend to any idea, procedure, and method of operation or mathematical concept as such.

Under the Copyright Act 1987 s.3, an author:

In relation to literary works, means the writer or the maker of the works.

In relation to musical works, means the composer.

In relation to artistic works other than photographs, means the person by whom the arrangements for the taking of the photographs were undertaken.

In relation to films or sound recordings, means the person by whom the arrangements for the making of the film or recording were undertaken.

In relation to broadcast transmitted from within any country, means:

The person transmitting the program, if he or she has responsibility for the selection of its contents or

Any person providing the program who makes with the person transmitting the arrangements necessary for its transmission.

[Subs. Act A994:s.2]

In relation to any other cases, means the person by whom the work was made.

A copyright is a work vests initially in the author (writer, composer, maker of the work, and others). However, where the making of a work is commissioned or where a work is made by and employee in the course of his employment, unless there is any contrary agreement, the copyright in the work shall be deemed to vest in the person who commissioned the work or the employer.  The author’s right is transferable by assignment testamentary disposition or by operation of law, in which case the assignee shall be the owner.

Literary, Musical or Artistic Works

Copyright in any literary, musical or artistic work shall subsist during the life of the author and shall continue to subsist until the expiry of a period of fifty (50) years after his death.  Where a literary, musical or artistic work had not been published before the death of the author, copyright shall continue to subsist until the expiry of a period of fifty (50) years computed from the beginning of the calendar year next following the year in which the work was first published.  Where a literary, musical or artistic work is published anonymously or under a pseudonym, copyright shall continue to subsist until the expiry of a period of fifty (50) years computed from the beginning of the calendar year next following the year in which the work was first published or first made available to the public or made, whichever is the latest.

In the case of a work with joint authorship, the life of the author who dies last is used for the purpose of calculating the copyright duration of the work.

Published Editions

Copyright in a published edition shall continue to subsist until the expiry of a period of fifty (50) years computed from the beginning of the calendar year next following the year in which the edition was first published.

Sound Recordings

Copyright in a sound recording shall continue to subsist until the expiry of period of fifty (50) years computed from the beginning of the calendar year next following the year in which the recording was first published or, if the sound recording has not been published, from the beginning of the calendar year following the year of fixation.

Broadcasts

Copyright in a broadcast shall continue to subsist until the expiry of a period of fifty (50) years computed from the beginning of the calendar year next following the year in which the broadcast was first made.

Films

Copyright in a film shall continue to subsist until the expiry of a period of fifty (50) years computed from the beginning of the calendar year next following the year in which the film was first published.

Government, Government Organizations and International Bodies

Copyright in works of the Government, Government organizations and international bodies shall continue to subsist until the expiry of a period of fifty (50) years computed from the beginning of the calendar year next following the year in which the work was first published.

The copyright in a work is infringed when a person who:

Not being the owner of the copyright, and

Without consent or license of the owner of the copyright does or causes any other person to do any of the following acts:

reproduces in any material form, performs, shows or plays or distributes to the public, communicates by cable or broadcast of the whole work or a substantial part thereof either in its original or derivative form

Imports any article into Malaysia for the purpose of trade or financial gains.

Makes for sale or hire any infringing copy

Sells, lets for hire or by way of trade, exposes or offers for sale or hire any infringing copy.

Distributes infringing copies.

Possesses, otherwise than for his or she private and domestic use, any infringing copy.

By way of trade, exhibits in public any infringing copy.

Imports into Malaysia, otherwise that for his or she private and domestic use, an infringing copy.

Makes or has in the possession any contrivance used or intended to be used for the purposes of making infringing copies.

Circumvents or causes the circumvention of any effective technological measures.

Removes or alters any electronic rights management information without authority.

Removes or alters any electronic rights management information without authority.

Distributes, imports for distribution or communicates to the public, without authority, works or copies of works in respect of which electronic rights management information has been removed or altered without authority.

Causes a literary or musical work to be performed in public.

For the purposes of (3) to (8), any person who has in his possession, custody or control three (3) or more infringing copies of a work or recording in the same form shall, unless the contrary is proved, be presumed to be in possession of or to import such copies otherwise than for private or domestic use.

The penalties for copyright infringement

Any person who:

Makes for sale or hire any infringing copy

Sells, lets for hire or by way of trade, exposes or offers for sale or hire any infringing copy

Distributes infringing copies

Possesses, otherwise than for his or her private and domestic use, any infringing copy

By way of trade, exhibits in publics any infringing copy or imports into Malaysia, otherwise than for his or her private and domestic use, an infringing copy,

shall on conviction be liable to a fine of not less than two thousand ringgit (RM2, 000) and not more than twenty thousand ringgit (RM20, 000) for each infringing copy, or to imprisonment for a term not exceeding five (5) years or to both and for any subsequent offence, to a fine of not less than four thousand ringgit (RM4, 000) and not more than forty thousand ringgit (RM40, 000) for each infringing copy or to imprisonment for a term not exceeding ten years or to both.

Any person who makes or has in his possession any contrivance used or intended to be used for the purposes of making infringing copies shall on conviction be liable to a fine of not less than four thousand ringgit (RM4,000) and not more than forty thousand ringgit (RM40,000) for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding ten (10) years or to both and for any subsequent offence to a fine of not less than eight thousand ringgit (RM8,000) and not more than eighty thousand ringgit (RM80,000) for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding twenty years or to both.

If copyright has been infringed, the owner of the copyright is entitled to commence an action in the appropriate High Court in Malaysia.  In any action for such an infringement, all such relief by way of damages, injunction, accounts or otherwise, shall be available to the plaintiff as are available in any corresponding proceedings in respect of infringement of other proprietary rights.

Where an infringement of copyright is proved or admitted, and the court, having regard, in addition to all other material considerations to the flagrancy of the infringement and any benefit shown to have accrued to the defendant by reason of the infringement is satisfied that effective relief would not otherwise be available to the plaintiff, the court in assessing damages for the infringement, shall have power to award such additional damages as the court may consider appropriate in the circumstances.

Copyright Tribunal

The Copyright Tribunal is an independent body established under the Copyright Act 1987.  The main function of the Copyright Tribunal is to settle various types of disputes, where the parties cannot agree between themselves, over terms and conditions of copyright licensing and royalty payments.

Licensing scheme

A person who claims, in a case covered by a licensing scheme, that the operator of the licensing scheme has refused to grant him or procure to him of a license in accordance with the licensing scheme or has failed to grant him or procure the grant to him of a license in accordance with the licensing scheme within a reasonable time after being asked may apply to the Tribunal for an order declaring that the applicant is entitled to a license on such terms as the Tribunal may determine to be applicable in accordance with the licensing scheme.

A person who claims, in a case excluded from a licensing scheme, that the operator of the licensing scheme either has refused to grant him a license or procure the grant to him of a license, or has failed to do so within a reasonable time of being asked, and that in the circumstances it is unreasonable that a license should not be granted or proposes terms for a license which are unreasonable may apply to the Tribunal for an order declaring that the applicant is entitled to a license on such terms as the Tribunal may determine to be reasonable in the circumstances.

Licence to produce and publish translation

A person may also apply to the Tribunal for a license (not being an exclusive license) to produce and publish (available for distribution only in Malaysia) in the national language a translation of a literary work written in any other language on condition that the applicant shall pay to the owner of the right of translation in the work in respect of copies sold to the public, royalties at a rate to be determined by the Tribunal.

Legal Issues 1

Current Law Journal – 1987

Longman (M) Sdn. Bhd. vs Pustaka Delta Pelajaran Sdn. Bhd.

High Court Malaya, Kuala Lumpur

Gunn Chit Tuan J

Civil Suit No. C 615 of 1981

22 September 1986

The action taken by plaintiff (Longman (M) Sdn. Bhd.) for infringement of copyright in a text-book translated from English to Bahasa Malaysia. The text-book that was believed to be the one who copied has their general arrangements, languages and errors similar to the plaintiff’s text.

The legal issues that is trying to be address here are that whether book protected under Copyright Act 1969 – Substantial part of plaintiff’s book – whether in the context of Copyright Act 1969 s.8(1).

The action taken due to the text-book which was translated from a manuscript in English to Bahasa Malaysia by three Malay translators who was commissioned by it. The plaintiff claimed that they were the sole owner of the copyright in a book entitled “Kursus Ulangkaji Rampaian Sains” (the said book). The said book was published in 1979 and it was a book for a student to preparing in SPM examinations.

The Bahasa Malaysia version was first published in the year of 1979 and the reprint edition was in 1980. Since 1979 the plaintiff stated that they has not given any authority or licensed to others to anyone to publish or to reproduce it. The plaintiff claimed that after the defendant has published their own printed version, they were badly affected by it.

This is to be understood that probably the plaintiff has brought this case to the court because they has been badly affected by the pirated version of it. They also stated that the vital part of the plaintiff book was being pirated by them and that leads to the decreasing of sale for their book.

Legal Issues 2

The Copyright Infringment

This is a copyright infringement action brought by Ultra Sdn Bhd (the plaintiff) against the Director-General of the Malaysian Tourism Promotion Board (the first defendant). This copyright infringement action was brought by the plaintiff against the first defendant. The plaintiff claimed copyright of photograph with images of the Kuala Lumpur Skyline with emphasis on sceneries and landmarks such as the KLCC and KL Towers.

According to the plaintiff, the first defendant infringed its copyright photograph when the latter published the Visit Malaysia Year Brochure 2007 (the brochure) incorporating the photograph. The issue for determination was whether the plaintiff owned the copyright of the photograph. To establish ownership, the plaintiff relied on the affidavit affirmed by Bok Tak Siew (PW1) (the affidavit) made pursuant to s. 42 of the Copyright Act 1987 (the Act).

However, the original photograph was not annexed to the affidavit. Learned counsel for the first defendant submitted that s. 13(2)(i) of the Act clothed the first defendant with statutory protection against the plaintiffs claim. The court therefore had to determine whether the Malaysian Tourism Promotion Board (“The Board”) fell under the protection of s. 13(2)(i) of the Act.

Legal Issues 3

The Case of Logo and Trademark Copyright

This case is between KUANG PEI SAN FOOD PRODUCTS PUBLIC COMPANY LIMITED against the WEES MARKETING CO SDN BHD on the case of logo and trademark copyright. The plaintiff is Kuang Pei San Food Products Public Company Limited and the defendant is Wees Marketing Co Sdn Bhd and the case took place in The High Court in Sabah and Sarawak in Kuching, Malaysia.

The plaintiff claim that the defendant copy their name and trademark and change a bit of their brand name as well as their trademark and it is confusing the consumers. The plaintiff alleges that the depiction of these marks on the defendant’s canned sardines is an infringement of their copyright, causing irreparable damage to their business goodwill, reputation and causing them to suffer loss and damage. The plaintiff company is a company from Thailand and has been distributing their products in Sarawak for the past twenty years. While the defendant is a local company that has been in the business for 11 years.

What make the case more difficult to judge is that the companies are in the same business field and the defendant is once the plaintiff distributer. The plaintiff terminated their contract way back in May 1998. Their contract were terminated because they had attempted to hijack the “Smiling Fish” trade mark by applying for registration of the same get up on 24.8.1987. But the defendant denies the alleged and they claim that the plaintiff motive was all about business because they are trying to monopoly the business.