Nature of copyright
Copyright protects a wide variety works and in essence reserves to the copyright owner the right to make copies of the work and to authorize the making of copies, as well as control other acts of exploitation, for a specified duration.
The kinds of works protected under copyright law are:
- literary works - including books, pamphlets, plays, drama, scripts, articles, letters, reports, memoranda, tables and compilations, computer programs;
- artistic works - including paintings, drawings, diagrams, maps, charts, engravings, photographs, sculptures, works of architecture, works of artistic craftsmanship;
Works are protected irrespective of their quality and the purpose for which they were created. The protection is for the form of expression rather than the underlying content of the work. Thus, copyright protection does not extend to any idea, procedure, method of operation or mathematical expression as such.
Copyright shall not subsist in any registered industrial design. Also, for any design that is capable of being registered and has not been registered, copyright in the design shall cease after it has been industrially exploited by making more than 50 articles according to the design. In order to be eligible for protection, a literary, musical or artistic work must be:
- original in the sense of not being copied and with sufficient effort having been expended in its creation; and
- written down, recorded or otherwise reduced to material form.
Criteria for protection
In order to qualify for protection, one of the following conditions must be met:
- the author is a qualified person, meaning a citizen or permanent resident of Malaysia, or of any Berne Convention member country, at the time the work was made;
- the work is first made available to the public in Malaysia, or in any Berne Convention member country;
- if the work is first made available to the public elsewhere, it is made available within 30 days thereafter to the public in Malaysia or in any Berne Convention member country; or
- the work (other than published editions) is made in Malaysia or the work (other than sound recordings, broadcasts and published editions) is made in any Berne Convention member country.
Ownership of copyright
It is important to note that there is a distinction between the author of a work and the owner of copyright in it. Copyright ownership shall initially vest in the author. This general rule is however subject to two exceptions: where the author was commissioned under a contract of service or apprenticeship, or where the work was created in the course of his employment, copyright shall vest in the commissioner or employer. These exceptions are subject to any agreement to the contrary. The owner of copyright is entitled to assign or license the right. Such an assignment or license must be executed in writing.
The Berne Convention on the Protection of Literary and Artistic Works came into force for Malaysia on 1 October 1990. There are over 150 Berne Convention member countries. Under the Berne Convention, a work that originates in any one of the member countries must be afforded the same level of protection in all other member countries as that one country grants to works of its own nationals; this is the so-called principle of national treatment. Such protection must also be automatic and not conditional upon any formality such as registration of the copyright. Thus, copyright obtained in other member countries is equally recognized and enforceable in Malaysia. Likewise, a Malaysian author's work is protected in other member countries.
Copyright in a literary, musical or artistic work, a film or sound recording consists of the exclusive right to control in Malaysia for:
- the reproduction in any material form;
- the communication to the public;
- the performance, showing or playing to the public;
- the distribution of copies to the public by sale or other transfer of ownership; and
- the commercial rental to the public,
of the whole work or a substantial part of the work. A substantial part of a work is to be assessed qualitatively rather than quantitatively. The exclusive right to control distribution of copies is only in respect of the act of putting into circulation copies not previously put into circulation in Malaysia. The right is exhausted and no longer applicable to any subsequent distribution or importation of those copies. Various public policy exceptions are made to the above exclusive rights, including (among others) non-profit research, private study, criticism, reporting of current events, setting questions and answers for examinations, and making recordings of broadcasts for private and domestic use or for educational purposes.
The Act protects not only the economic rights of the copyright owner, but also the moral rights of the author. An author moral right consists of the right to be identified as the author and the right to object to any distortion, mutilation or other modification that significantly alters the work and is such that it might reasonably be regarded as adversely affecting the author honour and reputation. Moral rights are not capable of assignment as they are personal in nature. Nevertheless, they may be exercised by a personal representative after the author demise.
Duration of protection
Generally, for literary, musical and artistic works published during the author lifetime, the term of copyright protection is for the life of the author plus 50 years after his death. For a work published after the death of the author, the copyright shall subsist for 50 years from publication of the work.
Proof of subsistence and ownership of copyright
There is no system for registration of copyright in Malaysia. Therefore, it is particularly important to carefully document the creation of any work and the ownership of copyright in it. It is prudent, though not compulsory, to affix a copyright notice on any copyright work. Such a notice may consist of the word "copyright" or the symbol © accompanied by the name of the person claiming copyright as well as the year of first publication.
The copyright owner may also elect to affirm an affidavit or statutory declaration before a Commissioner for Oaths in respect of any work eligible for copyright, stating that copyright subsists in the work, that he is the owner of the copyright, and annexing a copy of the work. Such an affidavit or statutory declaration shall be admissible in any proceedings under the Act and is prima facie evidence of the facts stated in it.
Infringement of Copyright
The copyright in a work is infringed when a person other than the copyright owner or his licensee, does or authorizes any of the following acts:
- reproduces in any material form, performs, shows, plays or distributes to the public, communicates by cable or broadcast the whole work or a substantial part of it, either in its original or derivative form; or
- imports any article into Malaysia for the purposes of trade or financial gain, when the person knows or ought reasonably to know that the making of the article was done without the consent or license of the copyright owner.
In line with the increasing overlap of Intellectual Property rights with information technology, the scope of infringing acts has been substantially widened. Thus, copyright is also infringed by a person who circumvents or causes another to circumvent any effective technological measures that are employed by authors to restrict acts in relation to their works that they have not authorized.
Furthermore, the unlawful removal or alteration of any electronic rights management information, and the distribution or importation of works or copies of works knowing that such information has been removed or altered, constitute infringing acts. Electronic rights management information is the information which identifies the work, the author, the owner or information about the terms and conditions of use of the work in an electronic form. The above acts of infringement are actionable by the copyright owner by way of civil suit in the High Court. The relief that may be granted includes damages, i.e. financial compensation, an account of profits, and an injunction to restrain the infringing acts. An injunction may be interlocutory or final in nature. There is no infringement of the copyright in any design document or model by making articles according to the design. Here, the term design refers to any aspect of the shape or configuration of the whole or part of an article, other than surface decoration or a design for an artistic work or typeface.
Apart from the civil remedies available, certain acts of copyright infringement are also a criminal offence. Responsibility for enforcement lies with the Enforcement Division of the Ministry of Domestic Trade and Consumer Affairs. The penalties that can be imposed on a guilty infringer include fines and even imprisonment. The criminal sanctions and punishment were hardened in 2003 in order to deter acts of infringement. There is now a minimum fine of RM2,000 per infringing copy if a person is found guilty of a copyright offence.
Type of offences include manufacture, importation, possession, public exhibition and distribution of, and commercial dealing in, infringing copies; causing a literary or musical work to be performed in public; making or possessing any contrivance used or intended to be used for making infringing copies; circumvention of effective technological measures as mentioned above; removal or alteration of electronic rights management information; and unauthorized distribution or importation of works or copies of works in respect of which electronic rights management information has been removed or altered.
The terms of a proposed licensing scheme or license in relation to the reproduction, performance, broadcasting and distribution of literary or musical works may be referred by an interested party to the Copyright Tribunal. Upon reference of the proposed licensing scheme or terms of the proposed license, the Tribunal may confirm or vary the terms as it considers reasonable in the circumstances. Where a licensing body has refused to grant a license or has failed to grant a license within a reasonable time, an interested party may apply to the Copyright Tribunal for an order compelling the licensing body to issue the license. The Copyright Tribunal has wide discretionary powers to vary or confirm the terms of a proposed scheme or license.