JURISDICTION REPORT: MALAYSIA
AMENDMENTS TO THE MALAYSIAN COPYRIGHT ACT
Chew Kherk Ying and Sonia Ong Wong & Partners
Te Copyright (Amendment) Act 2012 came into force on March 1, 2012, and introduced several key changes to the existing Malaysian Copyright Act 1987. Some of the salient amendments are discussed.
Limitation of liability for service providers Service providers, defined as those who provide services relating to, or provide connections for, the access, transmission or routing of data, or those who provide or operate facilities for online services or network access, are now afforded a safe harbour in cases of infringement by their users. Separate safe harbour requirements apply to the transmission, routing and provision of connections, system caching, and the provision of storage and information location tools. Notice and take-down procedures are clearly provided and must be complied with in order for the service provider to rely on the safe harbour.
Voluntary notification of copyright Te act now provides for a system of voluntary notification of copyright that may be made to the controller of copyright by, or on behalf of, the author, copyright owner, assignee or licensee. Such notifications will be entered on the register of copyright, and certified extracts thereof are prima facie evidence of the particulars therein and admissible in court. Previously, provision was made only for the execution of affidavits or statutory declarations admissible in court as prima facie evidence of ownership of copyright in a work.
Fair dealing Previously, the act restricted the defence of fair dealing to non-profit research, private study, criticism, review or the reporting of current events. Tese exceptions are now non-exhaustive so that fair dealing could now include other circumstances to be determined in consideration of: (i) the purpose and character of the dealing, including whether it is of a commercial nature or is for non-profit educational purposes; (ii) the nature of the work; (iii) the amount and substantiality of the portion used in relation to the work as a whole; and (iv) the effect of the dealing upon the potential market for or value of the work.
Relief for infringement Te act now empowers the court to grant relief in the form of statutory damages (not more than RM25,000 [US$8,300] for each work, but not more than RM500,000 [US$166,600] in aggregate), in addition to damages and an account of profits.
Te act now also provides that in cases of innocent infringement, no damages shall be awarded although the plaintiff will be entitled to statutory damages and an account of profits regardless of whether any other relief is granted.
64 World Intellectual Property Review May/June 2012
“PREVIOUSLY, THE ACT RESTRICTED THE DEFENCE OF FAIR DEALING TO NON-PROFIT RESEARCH, PRIVATE STUDY, CRITICISM, REVIEW OR THE REPORTING OF CURRENT EVENTS.”
Copyright protection for unregistered designs Previously, copyright in any design which is capable of being registered under the Malaysian Industrial Designs Act 1996 (IDA), but which has not been so registered, ceases as soon as any article to which the design is applied is reproduced more than 50 times by an industrial process by the copyright owner or his licensee. Tis provision has now been deleted, thus affording copyright protection for unregistered designs. Note, however, that copyright does not subsist for registered designs under the IDA.
Copyright protection for databases A draſting error in the act has been corrected to provide clearly for the protection of compilations of mere data, ie, databases, as being protected as derivative works by reason of the selection and arrangement of their contents. Previously, “collections of mere data” had to be “eligible for copyright” as a prerequisite for protection as a derivative work, thus making it unclear whether it was the “mere data” or the “collection of mere data” that must be eligible for copyright.
Technological protection measures and rights management information Although technological protection measures (TPM) and rights management information (RMI) were already provided for under the act, specific and more expansive provisions have now been inserted. In particular, exceptions to infringement in such cases are now provided.
Licensing bodies Licensing bodies for copyright owners must now apply to the controller to be declared as a licensing body under the act. Such declaration may be revoked by the controller, for example where the licensing body is not functioning adequately, no longer has the authority to act on behalf of its members, is not acting in its members’ best interests or is not complying with the Act.
Chew Kherk Ying is managing partner at Wong & Partners. She can be contacted at:
kherk.ying.chew@
wongpartners.com
Sonia Ong is an associate at Wong & Partners. She can be contacted at:
sonia.ong@wongpartners.com
www.worldipreview.com
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