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Copyrights in Malaysia

Important information regarding Copyright law in Malaysia are:

Legislation – Copyright Act 1987

Office – Intellectual Property Corporation of Malaysia.

Websitehttp://www.myipo.gov.my/en/copyright-basic/?lang=en%2F#works-eligible-for-copyright

Address – Copyright Division, Intellectual Property Corporation of Malaysia (MyIPO), Aras 18, Tower B, Menara UOA Bangsar, No. 5 Jalan Bangsar Utama 1, 59000 Kuala Lumpur.

Emailinfocopyright@myipo.gov.my  

Under the Copyright law in Malaysia following works are considered eligible for copyright protection:

  1. Literary works

Work is protected during the life of the author and then 50 years after the death of author.

  • Musical works

Work is protected during the life of the author and then 50 years after the death of author.

  • Artistic works

Work is protected during the life of the author and then 50 years after the death of author.

  • Films

Work is protected for a period of 50 years from the date of publication of the work.

  • Sound Recordings

Work is protected for a period of 50 years from the beginning of the calendar year following the year of fixation/ publication.

  • Broadcasts

Work is protected for a period of 50 years, computed from the beginning of the calendar year next following the year in which the broadcast was first made.

Note 1: Anonymous and Pseudonymous work are protected for a period of 50 computed from the beginning of the calendar year next following the year in which the work was first published.

Note 2: Work of Government, Government organizations and International Bodies are protected for a period of a period of 50years computed from the beginning of the calendar year next following the year in which the work was first published.

Note 3: Published editions are protected until expiry of 50 years from the beginning of the calendar year next following the year in which the edition was first published.

Note 4: Performer’s right is protected for a period 50 years from the year when the work was first fixed in sound recording.

Note 4: Duration of Equitable Remuneration shall subsists until expiry of 50 years from:

  • In case of published work, computed from the calendar year next following the year of publication
  • In case of unpublished work, computed from the beginning of the calendar year next following the year of the fixation.

Publication for the purpose of Copyright will be:

  • In case of literary, musical or artistic work or any edition in respect of such work.

When copy/ copies of the work have been made available, with the consent of the author or any person lawfully authorized by the author, in a manner sufficient to satisfy the reasonable requirements of the public, whether by sale or otherwise, will be deemed as publication.

  • In case of film

When copy/ copies of the film have been sold or let on hire or offered/  exposed for sale or hire, with the consent of the author or of any person lawfully authorized by the author in a manner sufficient to satisfy the reasonable requirements of the public, will be deemed as publication.

  • In case of Sound Recording

When copy/ copies of such sound recording have been made available with the consent of the author or of any person lawfully authorized by the author in a manner sufficient to satisfy the reasonable requirements of the public, will be deemed as publication.

  • In case of fixed Performance

When copy/ copies of the fixed performance have been made available with the consent of the performer in a manner sufficient to satisfy the reasonable requirements to the public, will be deemed as publication.

Note 1: Performance of a literary or musical work and the exhibition of an artistic work does not constitute publication of the work.

Note 2: Publication will be deemed to be first publication in Malaysia if work was first published or performed in Malaysia; or if published outside Malaysia but published in Malaysia within 30 days from date of publication elsewhere.

Derivative works are also separately identified under the Copyright law in Malaysia as:

  • Translations, adaptations, arrangements and other transformations of works eligible for copyright.
  • Collections of works eligible for copyright, or compilation of mere data whether in machine readable or other form, which constitute intellectual creation by reason of the selection and arrangement of their contents

Such Derivative works are separately protected without any prejudice to protection of the original works used.

Published editions of work in any one or more literary, artistic or musical work are also copyright protected if the first publication of such work took place in Malaysia or the publisher was a qualified person at the date of first publication.

Note 1: Qualified person is a person who is a citizen of, or a permanent resident in, Malaysia. In case of body corporate, established in Malaysia and constituted or vested with legal personality under the laws of Malaysia.

Note 2: Published edition does not include edition which reproduces the typographical arrangement of a previous edition.

Copyright also subsists in works of Government, Government Organization and International Bodies where such works are made under the direction or control of respective bodies.

The Act also protects Performers’ right where the performer is either citizen or permanent resident of Malaysia or if not citizen or permanent resident of Malaysia then

  • if the performance takes place in Malaysia or
  • if the performance is incorporated in Sound Recording protected under the Copyright Act 1987
  • if not fixed in Sound Recoding but included in broadcast protected under the Copyright Act 1987.

Exclusive right to control and its limitations

The Exclusive Right to Control of the owner are:

  • Right to reproduction in any material form.
  • Right to communication to public
  • Right to performance
  • Right to distribution of copies to public
  • Right to commercial rental.

However, section 13(2) of the Copyright Act 1987, provides for certain limitation on the the exclusive right to control under the Copyright Law in Malaysia. Few of such acts are listed below for easy reference:

  • Acts of fair dealing including for purposes of research, private study, criticism, review or the reporting of news or current events

Note: Acknowledgement of the title of the work and its authorship is required except for news or current events which are reported by sound recording, film or broadcast.

The Copyright Act 1987 under section 13(2A) further provides for the factors that must be considered for determining fair dealing:

  • Purpose and character of the dealing (including commercial nature or non-profit educational purpose)
  • Nature of copyrighted work
  • Amount and substantiality of the portion used
  • Effect of the dealing upon the potential market/ value of the copyright.
  • Acts of parody, pastiche, or caricature
  • Inclusion in a film or broadcast of any artistic work situated in a place where it can be viewed by the public.
  • Reproduction and distribution of copies of any artistic work permanently situated in a place where it can be viewed by the public
  • Incidental inclusion in artistic work, sound recording, film or broadcast.
  • For teaching purpose and if compatible with fair practice, with due mentioning/ acknowledgement of the source and author, then inclusion of work in broadcast, performance, showing, or playing to the public, collection of literary or musical works, sound recording or film.
  • Reproduction made in educational institutions.
  • Making of sound recording or film of broadcast or literary, dramatic or musical work for private and domestic use.

Exclusive right to control for Performers under the Copyright Law in Malaysia are:

  • Communication to the public of a performance.
  • Fixation of an unfixed performance

Note: Such right will cease, if consent is given against such right to any party.

  • Reproduction of the fixation of performance
  • First distribution to the public of a fixation of a performance, or copies thereof, through sale or other transfer of ownership
  • Commercial rental to the public of a fixation of a performance, or copies.

There are restrictions against the exploitation of these rights under section 16A(3) of the Act. These restrictions are similar in nature as mentioned above.

The Copyright Act 1987 allows a society or an organization intending to operate as a licensing body for copyright owners in respect of any specified class to be declared as licensing body under the Act. An application in this regard, must be made to the Controller by complying with requirements under section 27A(2) and other relevant provisions.

It is expressly mentioned under the law that any society or organization which operates as a licensing body without obtaining a declaration or any licensing body not compliant with requirements under the Act will commit an offence and will liable to a fine not exceeding five hundred thousand ringgit.

Where a license is with respect to reproducing the work or performing or showing or playing the work in public or communicating the work to the public or rebroadcasting the work or the commercial rental of the work to the public or making adaptation of the work, then the licensing body is required to adhere to following requirements:

  • Terms of a licensing scheme proposed to be operated by a licensing body may be referred to the Tribunal. The Tribunal may accordingly pass such order, either confirming or varying the proposed licensing scheme, as determined reasonable and for such specified period or indefinitely.
  • If a dispute arises during the operation of licensing scheme between he operator of licensing scheme and person / representative of person / person to whom license has been granted under the scheme, the dispute may be referred to the Tribunal and during pendency of the proceedings the licensing scheme shall remain operational. Upon hearing the matter, Tribunal may pass necessary order as deemed reasonable.
  • If a person who claims that the operator of licensing scheme, covered within or beyond the licensing scheme, has refused to grant him license in accordance with the scheme or within a reasonable time, such person can apply to the Tribunal for an order in this regard. The Tribunal can make an order if satisfied that the claim is well-founded and as per the terms as tribunal may deem reasonable.

When an order of the Tribunal is in effect, a person who intends to obtain license in respect of a class to which the order applies can:

  • Pay to the operator the charge payable or in case amount cannot be determined then give an undertaking, and
  • Comply with the terms of the license under the licensing scheme, and
  • Be in same position as if he had been the holder of license granted by owner of copyright, as regards to infringement of copyright.

Part IV of the Copyright Act 1987 deals in detail with respect to the various specific circumstance of licenses.

The Copyright Act 1987 provides for ‘Equitable Remuneration’ where Sound Recording is published for commercial purpose or reproduction of such recording is used for broadcast or other communication to public. The Act provides that when such recording is being used then the performer is entitled to Equitable Remuneration, which can be agreed by the performer under the terms and conditions of contract, which may be more favourable to performer for his performance.

The remuneration cannot be considered as inequitable just because the remuneration was paid in single payment. However, the performer is entitled to apply to the Tribunal to determine the amount payable as equitable remuneration, in absence of such contract. Such application can also be made to the Tribunal to:

  • Vary any contract as to the amount payable as equitable remuneration; or
  • Vary any previous determination of the Tribunal relating to the equitable remuneration.

Note: Such application must be made within 12 months from the date of previous determination, except where special leave is allowed by the Tribunal.

Once an application is made to the tribunal, then the tribunal pass necessary order after taking into account all reasonable measures for calculating an payment of equitable remuneration.

Note 1: A contact will be void if it prevents the performer for questioning the equitable amount or restricts the power of tribunal.

Note 2: Published commercial purpose includes sound recording has been made available to the public by wire or wireless means in such a way that members of the public may access them from a place and at a time individually chosen by them.

Tribunal under the Copyright Act 1987, is vested with the following powers in accordance with the Act:

  • an application by a performer; 
  • any reference by an operator, a person or an organization; 
  • an appeal by a licensing body; and 
  • the exercise of the power in respect of licence to produce and publish translation.

The Copyright law provides that a notification of copyright can be made to the Controller by the author or owner or person duly authorized, by paying the fee as per schedule. Required information to be submitted with the Controller are as under:

  • the name, address and nationality of the owner of the copyright; 
  • a statutory declaration that the applicant is the author of the work, or the owner of the copyright in the work, or an assignee of the copyright, or a person to whom an interest in the copyright has been granted by licence; 
  • the category of the work; 
  • the title of the work; 
  • the name of the author and, if the author is dead, the date of the author’s death, if known; 
  • in the case of a published work, the date and place of the first publication; and 
  • any other information as the Minister may determine

The following acts are considered as copyright infringement:

  • Act done without the licence of the owner of the copyright
  • Act done without licence of owner by importing article into Malaysia for any of the following purpose:
  • selling, letting for hire, or by way of trade, offering or exposing for sale or hire, the article; or
  • distributing the article for the purpose of trade or for any other purpose to an extent that it will affect prejudicially the owner of the copyright; or
  • by way of trade, exhibiting the article in public

Where copyright infringement is actionable at the suit of owner of the copyright, the Court may grant any of the following relief:

  • an order for injunction; 
  • damages;
  • an account of profits;
  • statutory damages of not more than twenty-five thousand ringgit for each work, but not more than five hundred thousand ringgit in the aggregate; or 
  • any other order as the court deems fit.

The following acts, during the subsistence of copyright and unless proved that the acts were done in good faith and had no reasonable grounds to believe infringement, are punishable as under:

  • Where 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;
  • has in his possession, custody or control, otherwise than for his private and domestic use, any infringing copy;
  • by way of trade, exhibits in public any infringing copy;
  • imports into Malaysia, otherwise than for his private and domestic use, an infringing copy;

For the abovementioned offences (a) to (f), a fine of not less than two thousand ringgit and not more than twenty thousand ringgit for each infringing copy, or to imprisonment for a term not exceeding five years or to both. However, in case of subsequent offences, a fine of not less than four thousand ringgit and not more than forty thousand ringgit for each infringing copy or to imprisonment for a term not exceeding ten years or to both

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

For this act, a fine of not less than four thousand ringgit and not more than forty thousand ringgit for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding ten years or to both. However, in case of subsequent offences, a fine of not less than eight thousand ringgit and not more than eighty thousand ringgit for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding twenty years or to both.

  • circumvents or causes or authorizes the circumvention of any effective technological measures referred to in subsection 36A(1);

For the above act, a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both. However, in case of subsequent offence, a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

(ha) manufactures, imports or sells any technology or device for the purpose of the circumvention of technological protection measure referred to in subsection 36A(3);

For this act, a fine of not less than four thousand ringgit and not more than forty thousand ringgit for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding ten years or to both. However, in case of subsequent offences, a fine of not less than eight thousand ringgit and not more than eighty thousand ringgit for each contrivance in respect of which the offence was committed or to imprisonment for a term not exceeding twenty years or to both

  • removes or alters any electronic rights management information referred to in section 36B without authority; or
  • 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,

For acts (i) and (j), a fine not exceeding two hundred and fifty thousand ringgit or to imprisonment for a term not exceeding five years or to both. However, in case of subsequent offence, a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding ten years or to both.

Anti-Camcording is an offence where any person makes an audio-visual recording in a screening room to record any film. Such offence are punishable under to a fine of not less than ten thousand ringgit and not more than one hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Similarly, any person who makes an attempt to make such above recording, such person is punishable to a fine of not less than five thousand ringgit and not more than fifty thousand ringgit or to imprisonment for a term not exceeding one year or to both.

Note: Screening room means any venue which is utilized for the exhibition or screening of a motion picture, including a motion picture theatre.

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