Copyright Law in

Malaysia
Zinatul Ashiqin Zainol
[email protected]
Last week we have
covered
• International treaties on copyright
• Copyright Act 1987
• Basic concepts
• works eligible for copyright
• Originality
• Fixation
• Qualification for protection (personal criterion &
territorial criterion)
 • Authorship vs Ownership
• Dealings
• Exclusive Rights of Owner
• Permitted Acts and Defences
• Moral Rights
• Current Issues on Copyright

Today we will discuss

 • Under copyright law, there is a
distinction between authorship
and ownership.
• Author refers to the creator or
Author vs Owner originator of the work while the
owner is the person who is
entitled to control the doing of
the various restricted acts.

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 Who is an author?

Author defined Literary-writer S. 3 S. 3 Joint authorship

according to subject Artistic works other than photograph –artist work produced by the
matter
Photograph – person undertakes the arrangement for taking the collaboration of two or more
photograph authors in which the contribution
Film/sound recording - person undertakes the arrangement for of each author is not separable
making the film/recording from the contribution of the other
Broadcast – persons transmitting the broadcast author or authors
Any other work – person by whom the work was made
Only individuals can be ‘authors’
Who is an owner?

• S. 26(1) Copyright shall vest initially with the author

• S. 26(2) (a) where a work is a commissioned work -
copyright deemed to be transferred to the person who
commissioned the work
• S. 26(2) (b) works made under employment - copyright
deemed to be transferred to the author’s employer subject
to any agreement
• S. 26(3) copyright conferred by s. 11 (works of
government), shall vest initially in the government,
governmental organization or international body and not
the author.

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Employees copyright

Big question – whether the work was created in

the course of employment
• Stevenson, Jordan and Harrison Ltd v
McDonalds and Evans [1952]
• Nora Beloff v Pressdram Ltd [1973]
• Megnaway Enterprise Sdn. Bhd. V Soon Lian
Hock [2009]
Dealings

Copyright is a property right s. 27(1) copyright transferrable by

way of
(i) assignment,
(ii) testamentary disposition or
(iii) operations of law
Dealings –
Assignment

• A owner of copyright in a book, A

assigned his copyright to B. C
copies some parts of the book.
Who can take actions against C?

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Dealings –
Assignment
• Rock Records (M) Sdn. Bhd. v Audio One
Entertainement Sdn. Bhd. [2004]
• A legal assignment of copyright vests the rights
assigned in the assignee. Here, the assignee is the
plaintiff and as an assignee, the plaintiff may
take proceedings against the persons who
infringe or who have infringed the copyright.

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  Copyright owner may bequeath his copyright
to a person upon his death, like any other
personal or moveable property
 An author can, by way of a will, transfer all
his rights in his works, including works which
have not written or completed. S. 27(6)

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Dealings – Testamentary Disposition

Dealings – Operations
of Law (Licence)
• Licence is a contract conferring upon another
person the right to exploit the copyright in a manner
stipulated in the licence
• Licence can be exclusive or non-exclusive, and can
be exploited separately
• Must be in writing - Syed Alwi v DBP [1980
• S. 3 a licence means a lawfully granted licence
in writing, permitting the doing of an act
controlled by copyright.
• S. 27(3) no assignment … and no licence…
shall have effect unless it is in writing.
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  Japanese Manga . A assigned his copyright to B. B can
make the following licences;
 to C the right the translate into Mandarin and Korean.

Dealings and 

to D the right to make e-books of all 3 languages
To E the right to sell the books in China, Taiwan and

Licence 
Hong Kong
To F the right to market the e-books on Amazon and e-
Sentral bookstore.
  Publication and recording agreement comes in standard form of
Polygram Records Sdn. Bhd v contract. Terms set by publishers or recording company who are
in an economically advantageous position
The Searh & Anor [1994]  Artists challenges the validity of recording contract – one sided
 Copyright confers a bundle of exclusive
rights to copyright owner (first
owner/assignee/exclusive
licensee/beneficiary of will)

Exclusive Rights vs s. 13(1) – s. 15 exclusive rights of

copyright owner – may be exploited in
Copyright isolation or together

Infringement
s. 13(1) – s. 15 normally read together
with sections 36(1) to determine whether
direct infringement has taken place

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Exclusive Rights of owner

s. 13(1) Literary, musical or artistic works, film, sound recording or

derivative works

s. 14 Works of architecture

s. 15 Broadcasts
s. 13 (1) literary, musical or artistic works,
film, sound recording or derivative works
 S. 13 (1) S. 36(1) copyright is infringed by any person
 Reproduction right who does, or causes any other person to do,
without the licence of the owner of copyright,
 Communication to the public right
an act the doing of which is controlled by
 Performance, showing or playing to the copyright under this Act
public
 Distribution of copies to the public by
sale or other transfer of ownership
 The commercial rental to the public
s. 36(1) reproduction
rights – 3 step tests of
direct infringement

• objective similarity
• Sufficient objective similarity between the original work or a
substantial part thereof, and the infringing copy

• Causal connection
• Causal connection between the original work and the infringing
copy, i.e. the infringing copy must have been copied from the
original work, whether directly or indirectly

• substantial part
• What has been copied must constitute a substantial part of the
original work

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Objective similarity
 Plaintiff (copyright owner) must show that a sufficient degree of similarity exists between
the alleged infringing work and the copyright work of a substantial part of it
 Sufficient objective similarity raises prima facie inference of copying
 Identicalness or close similarities not conclusive of copying, but a rebuttable presumption
of copying – may derive from common source or character of both works end result
necessarily similar
 Aural and visual inspection, depending on nature of work
  There could be infringement even though the
imitation is not an exact replica. It does not
matter whether the size of the copy has been
increased or reduced, or whether the whole part
was copied. There need not be an exact
reproduction, but there must be a high degree of
similarity between the two.
 In copyright law, once substantial similarity is
established, a prima facie presumption of copying
by defendant arises and the burden is shifted to
the defendant to rebut the causal connection.
Where the defendant has failed to rebut this
presumption, the second element is fulfilled

Megnaway Enterprise Sdn. Bhd. v Soon

Lian Hock [2009]
  Can a literary work (2D) be reproduced in a 3-dimentional form?

Objective similarity -
 Engineering drawing into artistic works?

 Landmark case - Peko Wallsend Operations Ltd v Linatex [1993]

 Elster Metering Ltd & Anor v Damini Corporation Sdn Bhd [2010]

Reproduction in any 


Nordic Water Products v Pumpen Environmental Sdn Bhd [2010]

Radion Trading Sdn Bhd v Sin Besteam Equiptment Sdn Bhd [2010]

material form
 Megnaway Enterprise Sdn. Bhd. v Soon Lian Hock [2009]

 Honda Giken Koygo Kabushiki Kaisha v Allied Pacific Motor (M) Sdn Bhd [2005]

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Causal connection
 Causal connection between the original work and the infringing
copy, i.e. the infringing copy must have been copied from the
original work, whether directly or indirectly
 Inferences from
 Defendant’s access to the work
 Actual knowledge of the work
 Opportunity to copy the copyright work
 Radion Trading Sdn Bhd v Sin Besteam Equiptment Sdn Bhd
[2010]
 Hexagon Tower Sdn Bhd v Polydamic Holdings Sdn Bhd [2005]
 Dabur India Ltd v Nagasergi Sdn Bhd [2011]
 Elster Metering Ltd & Anor v Damini Corporation Sdn Bhd [2010]
Substantial part

• What has been copied must constitute a substantial part

of the original work
• Ladbroke (Football) Ltd. v William Hill [1964-UK]
• Lord Reid – the question whether he has copied a
substantial part depends much more on the quality than
on the quantity of what he has taken, one test may be
whether the part which he has taken is novel or striking,
or is mere commonplace arrangements or ordinary words
or well-known data…first to determine whether the
plaintiff’s work as a whole is ‘original’ and protected by
copyright and then to inquire whether the part taken by
the defendant is substantial. This Photo by Unknown Author is licensed under CC BY-NC-ND
 D’s works ‘Kursus Lengkap Peperiksaan SPM Rampaian
Sains’ – general arrangements, language and features, and
Longman errors are similar to P’s ‘Kursus Ulangkaji Rampaian
Sains’
Malaysia Whether there was a reproduction of a substantial part?

sdn bhd v
Pustaka The determinative factor is whether the part taken is
Delta substantial, qualitatively and not quantitatively.

Pelajaran Gunn Chit Tuan J – this is a matter of facts and degree,

[1987] not because of the physical amount of the reproduction
but because of the substantial significance of that which
was copied.
 • Permittable acts are crafted to balance the
competing interests of copyright owner and
legitimate demands of users.
• 13(2) - Notwithstanding subsection (1), the
right of control under that subsection does not
include the right to control….

PERMITTED ACTS AND DEFENCES

 • Nalini Pathmanathan J:
MediaCorp News Pte Ltd & Ors• In order to achieve the balance between the
v MediaBanc (Johore Bharu) copyright owner and the public interest of society
Sdn Bhd [2010] at large the law has made provisions in the form of
s 13 of the Act where the five exclusive rights of
the copyright owner granted under the Act are
qualified by 20 exceptions where the copyright
owner has no such right to control.

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  13(2)(a) Fair dealing for research, private study, criticism or review
 13(2)(b) Parody, pastiche or caricature
 13(2)(f) inclusion in a broadcast for purpose of illustration for
teaching
 13(2)(ff) setting exam questions, communication question or
answering questions
 13(2)(e) incidental inclusion in an artistic work, sound recording,
film or broadcast
 13(2)(h) reading or recitation in public or in broadcast of any
reasonable extract of published literary work accompanied by
sufficient acknowledgement
 13(2)(i) use of public libraries

Permitted acts - Literary works

Hubbard & Anor v Vosper & Anor
[1972] 1 All ER 1023
• Per Lord Denning
• It is impossible to define what is "fair dealing." It must be a question of degree. You
must consider first the number and extent of the quotations and extracts. Are they
altogether too many and too long to be fair? Then you must consider the use made of
them. If they are used as a basis for comment, criticism or review, that may be fair
dealing. If they are used to convey the same information as the author, for a rival
purpose, that may be unfair. Next, you must consider the proportions. To take long
extracts and attach short comments may be unfair. But, short extracts and long
comments may be fair. Other considerations may come to mind also. But, after all is
said and done, it must be a matter of impression. As with fair comment in the law of
libel, so with fair dealing in the law of copyright. The tribunal of fact must decide. In the
present case, there is material on which the tribunal of fact could find this to be fair
dealing
Aztech Systems Pte Ltd v
Creative Technology Ltd
[1996]
For the purpose of determining whether a dealing constitutes a fair dealing
with the work, the following facts are relevant:
- The purpose and character of the dealing, including whether such dealing is
of a commercial nature or is for non-profit educational purposes;
- The nature of the work;
- The amount and substantiality of the part copied taken in relation to the
whole work; and
- The effect of the dealing upon the potential market for, or value of the work
 13(3A) What amounts to fair dealing
(Amendment 2012)

01 02 03 04
The purpose and character The nature of the copyright The amount and The effect of the dealing
of the dealing, including work; substantially of the portion upon the potential market
whether such dealing is of used in relation to the for or value of the
commercial nature or is for copyright work as a whole; copyright work
non-profit educational
purposes;
 13(2)(k) performance, showing or playing to the public…non-profit making
for educational and charitable purposes…no admission fee charged

13(2)(l) purposes of judicial proceedings, legislative body, statutory or

governmental inquiry…any report of such proceedings…or purpose of giving
professional advice by a legal practitioner

Permitted 13(2)(m) quote from published work if compatible with fair practice

acts -
Literary 13(2)(n) reproduction by press, broadcast or showing to public articles
published in newspapers or periodicals on current topics

works 13(2)(o) reproduction by press, broadcasting or showing or playing to public of

lectures, addresses and works of the same nature delivered in public if such use
for informatory purposes

13(2)(p) commercial rental of computer programs

  13(2)(a) Fair dealing for research, private study, criticism or review
 13(2)(b) Parody, pastiche or caricature
 13(2)(f) inclusion in a broadcast for purpose of illustration for teaching
 13(2)(ff) setting exam questions, communication question or answering
questions
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 13(2)(i) use of public libraries
 13(2)(k) performance, showing or playing to the public…non-profit making
for educational and charitable purposes…no admission fee charged
 13(2)(l) purposes of judicial proceedings, legislative body, statutory or
governmental inquiry…any report of such proceedings…or purpose of
giving professional advice by a legal practitioner

Permitted acts - musical works

 Permitted acts - artistic works
 13(2)(a) Fair dealing for research, private study, criticism or review
 13(2)(b) Parody, pastiche or caricature
 13(2)(c) inclusion of an artistic work situated in a public place in a film or broadcast
 13(2)(d) reproduction and distribution of copies of any artistic work permanently situated in a public place where it can be viewed
by the public
 13(2)(ff) setting exam questions, communication question or answering questions
 13(2)(i) use of public libraries
 13(2)(k) performance, showing or playing to the public…non-profit making for educational and charitable purposes…no admission
fee charged
 13(2)(l) purposes of judicial proceedings, legislative body, statutory or governmental inquiry…any report of such proceedings…or
purpose of giving professional advice by a legal practitioner

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  13(2)(a) Fair dealing for research, private study, criticism or review
 13(2)(b) Parody, pastiche or caricature
 13(2)(e) incidental inclusion of a work in an artistic work, sound recording, film or
broadcast
 13(2)(f) inclusion in a broadcast for purpose of illustration for teaching
 13(2)(ff) setting exam questions, communication question or answering questions
 13(2)(i) use of public libraries
 13(2)(k) performance, showing or playing to the public…non-profit making for
educational and charitable purposes…no admission fee charged
 13(2)(l) purposes of judicial proceedings, legislative body, statutory or
governmental inquiry…any report of such proceedings…or purpose of giving
professional advice by a legal practitioner

Permitted acts - films

  13(2)(a) Fair dealing for research, private study, criticism
or review
 13(2)(b) Parody, pastiche or caricature
 13(2)(e) incidental inclusion of a work in an artistic work,
sound recording, film or broadcast
 13(2)(f) inclusion in a broadcast for purpose of illustration
for teaching

Permitted acts –  13(2)(ff) setting exam questions, communication question

or answering questions

sound recording  13(2)(i) use of public libraries

 13(2)(k) performance, showing or playing to the public…
non-profit making for educational and charitable
purposes…no admission fee charged
 13(2)(l) purposes of judicial proceedings, legislative body,
statutory or governmental inquiry…any report of such
proceedings…or purpose of giving professional advice by
a legal practitioner

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 13(2)(a) Fair dealing for research, private study, criticism or review

13(2)(b) Parody, pastiche or caricature

Permitted 13(2)(f) inclusion in a broadcast for purpose of illustration for teaching

acts – 13(2)(ff) setting exam questions, communication question or answering questions

published 13(2)(i) use of public libraries

editions
13(2)(k) performance, showing or playing to the public…non-profit making for
educational and charitable purposes…no admission fee charged

13(2)(l) purposes of judicial proceedings, legislative body, statutory or

governmental inquiry…any report of such proceedings…or purpose of giving
professional advice by a legal practitioner
Permitted acts – broadcasts
 13(2)(a) Fair dealing for research, private study, criticism or review
 13(2)(b) Parody, pastiche or caricature
 13(2)(e) incidental inclusion of a work in an artistic work, sound recording, film or broadcast
 13(2)(f) inclusion in a broadcast for purpose of illustration for teaching
 13(2)(gg) making of a sound recording of a broadcast or film included in a broadcast for
private and domestic use
 13(2)(j) reproduction of a work for purpose of lawful broadcasting provided that the copies are
destroyed before the end of the period of six calendar months
 13(2)(g) reproduction made for the use of schools, universities or educational institutions
Permitted acts – broadcasts

 13(2)(gggg) making and issuing of copies of any work in any format to cater for the
special needs of people who are visually or hearing impaired and the issuing of such
copies by non-profit making bodies or other prescribed institutions
 13(2)(k) performance, showing or playing to the public…non-profit making for
educational and charitable purposes…no admission fee charged
 13(2)(l) purposes of judicial proceedings, legislative body, statutory or governmental
inquiry…any report of such proceedings…or purpose of giving professional advice by
a legal practitioner
 13(2)(ff) setting exam questions, communication question or answering questions
 13(2)(i) use of public libraries
2 types of rights
ECONOMIC RIGHTS – available to owners
• Bundle of rights given by law to enable copyright owner to
control economic exploitation of their works
• s. 13(1)

MORAL RIGHTS – remain with author

• Copyright authors are able to control the presentation and
modification of their works
• Non-economic rights
• Independent of author’s economic rights
• Last until the expiry of economic rights
Moral Rights s. 25(2)
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Author is licensed under
CC BY

Moral rights are Moral rights last until

Paternity right Integrity right independent of author’s the expiry of economic
economic rights rights

Right to object to any distortion,

mutilation or other modification
Right to claim authorship of the
of, or other derogatory action of
work
his work….adversely affecting
author’s honour or reputation
Current issues on
Copyright
• Copyright and visually impaired persons
• Copyright museum This Photo by Unknown Author is licensed under CC BY

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Marrakesh Treaty
Marrakesh Treaty
https://youtu.be/cgzQp2_m0Is

• Adopted on 27 June 2013

• Entered into force on 30 Sept
2016
• India first to join.
• 2021 - Malaysia is still not a
member

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Global Book Famine
• 285 million people worldwide in 190
countries are blind or visually impaired.
• 90% of them live on low incomes in
developing and least developed countries.
• Only 1–7% of books and published
materials are published in a format they can
read.
Increase access to books and
print materials to VIPs
(blind, visually impaired and
otherwise print disable)
https://youtu.be/cgzQp2_m0Is

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• Beneficiaries
• Works
• Accessible format copy
• authorized entities

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Beneficiary Persons (Art. 3)

• Beneficiaries include anyone who is print disabled – including

anyone who has difficulty reading printed material because they
are blind or visually impaired, or because of another physical
disability that doesn’t allow them to read

• blind, print disable, low vision

Works & accessible • Works include audiobooks
format copy (Art. 2) as well as text, notation
and related illustration,
while an accessible format
is any format (including
digital) that enables a
beneficiary to read or
access the content as
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feasibly and comfortably as
someone who is not print
disabled.

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Obligations under Marrakesh
• limitation or an exception to copyright
• order to allow “beneficiaries” and “authorized entities” to undertake any changes
needed to make a copy of a work in an accessible format for persons with a print
disability.
• Sharing of copies across borders
• allow the exchange across borders of those accessible copies produced according to
the limitations and exceptions provided in the Marrakesh Treaty, or in accordance
with the operation of law
Museums are Cultural Heritage Institutions

Museum collects and

Museums have preserves knowledge
Museums must
existed for and culture. Caretaker
adapt and adjust,
centuries. Are of nation cultural
digitizing and
museums heritage (artifacts, arts,
disseminating
socially and texts, drawings,
their collection
culturally paintings, photographs,
via the Internet.
relevant today? maps, films and sound
recordings)

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 Museum Collection

Not all items in the In most cases, the term of Ideally, museum has
collection of a museum the copyright protection on physical ownership of the
necessarily enjoy copyright the object have lapsed (e.G. works in their collection
protection (e.G. A KRIS in a Ming dynasty ceramic bowl and contractual agreement
history museum does not or shakespeare’s the assignment/licence of
qualify as a copyright work) manuscripts) copyright.

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 Copyright challenges museum activities

To reproduce and communicates to the public of the works in its collection,

museums need the rights holders’ permission, unless an exception or limitation on
copyright applies.
Many objects acquired before the digital networked environment, so who owns
‘digital rights’ on those objects? The initial author or the museum?

What about ‘orphan’ work, where author can no longer be identified or located?
• Section 9(5) The Government, the National
Archives, or any State Archives, the National
Library, or any State library, or any public libraries
and educational, scientific or professional
institutions as the Minister may by order prescribe,
may reproduce the typographical arrangement of a
published edition without infringing the copyright
subsisting by virtue of this section if such
reproduction is in the public interest and is
compatible with fair dealing and the provisions of
any regulations.
• Section 13 (i) (any use made of a work by or under
the direction or control of the Government, by the
National Archives or any State Archives, by the
National Library, or any State library, or by such
public libraries and educational, scientific or
professional institutions as the Minister may by
order prescribe, where such use is in the public
interest and is compatible with fair practice and the
provisions of any regulations, and—
• (i) no profit is derived therefrom; and
• (ii) no admission fee is charged for the
performance, showing or playing, if any, to
the public of the work thus used;
IP Protects Cultural Heritage

• Museums should champion - museums’,

mission and mandate, to preserve cultural
heritage and respect IP protection
• Museums should be allowed to reproduce
for preservation purposes, distribute for
educational purposes.
• Provide digital access to collections.
IP Policy for
Museums
• Guidance to administrators of the museum faced
with decisions concerning the use of IP either
owned or licensed.
• Clarify the rights and obligations of the
institution, the faculty, authors and artists whose
works are considered part of the collection and
the corresponding interests of the public.
Image Licensing
• Copyright in the photographic image of a work in a collection
• Electronic images of artworks and other collections, require rights analysis at multiple
levels: (status of protection, ownership)
• the artwork itself, whether it is still protected by copyright and if so by whom,
• the photograph of the artwork to determine the status of protection and the ownership
of the rights if any,
• the electronic image of the photograph could also be worthy of copyright protection
and thus require similar rights analysis
• Potential revenue opportunities in licensing their images to various commercial and
educational markets
Virtual Museums in
Malaysia
• Dept of Museum Malaysia (The Lost
Kingdoms, Pameran Wayang Kulit, Tenun
Songket Asean, Gambus Serantau, Kuasa
Emas, Pameran Chetti, Muzium Kota
Kayang)
• Bank Negara Malaysia Museum
• Art Galleries (Artemis Art, Segaris Art
Center, G13 Gallery, Islamic Arts Museum
Malaysia)
Virtual museum
around the world
 That’s all for
today.
No class next
week – Diwali.
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