Copyright in Malaysia (part 1)

Copyright in Malaysia (part 1)

In Malaysia, copyright protection is provided under the Copyright Act 1987. Unlike trademarks, designs and patents (other intellectual property rights), there is no specific system of registration for copyright in Malaysia. Copyright exists as soon as the original work is created and belongs to the creator of the work automatically under Section 26 of the Copyright Act 1987. Copyright protects creative works made by authors, producers, photographers, musicians, songwriters, artists, sculptors and other persons in creative businesses – Section 3 of the Copyright Act 1987. Malaysia is a signatory of the Berne Convention and therefore, copyrighted work created in Malaysia would be recognized by each contracting member country of the Berne Convention.

What can be protected by copyright?

Books (traditional or digital), scripts, music, pictures, videos, source codes for software, manuals/guidebooks, university journals, and other kinds of creative works or materials have special intangible rights attached to them – Section 7(1) of the Copyright Act 1987. These rights, known as “copyrights”, are owned by the people who create the work – authors, producers, photographers, musicians, songwriters, artists and such – who can choose to do anything and everything they wish with their exclusive rights under Section 27 of the Copyright Act 1987.

Copyright protects the expression of the author’s artistic and literary works and is also related to the exclusive right to prepare derivative works and to perform and display the work – Section 10 of the Copyright Act 1987. Subject to Section 7(1) of the Copyright Act 1987, artistic, literary and musical works, films, sounds recordings and broadcasts are eligible for copyright protection.

The only criteria for a creative work to be eligible for copyright is that there must have been sufficient effort applied or put into the work to make the work original and the work must be reduced to material form (so the work can be “seen” or “heard” by others) as per Section 7(3)(a) of the Copyright Act 1987. Works are eligible for copyright regardless of the quality of the work and the purpose for which they were created under Section 7(2) of the Copyright Act 1987.

How is copyright protected in Malaysia?

Although copyright is a non-registrable right (i.e., cannot be registered) in Malaysia and does not enjoy automatic protection, ownership of copyright can be established by production of proper documentation. Copyright owners can claim ownership by way of a Statutory Declaration or by filing a Voluntary Notification at the Intellectual Property Corporation of Malaysia (MyIPO).

Cases on protection of copyright:

Siti Khadijah Apparel Sdn Bhd v. Ariani Textiles & Manufacturing (M) Sdn Bhd [2018] MLRHU 892 which provides that:

“According to Section 6 of the Copyright Act 1987, no copyright shall subsist otherwise than by virtue of Copyright Act 1987. Whether a piece of “artistic work” [as understood in ss 3 and 7(1)(c) Copyright Act 1987] can be protected by copyright under Copyright Act 1987 depends on whether all the following conditions under Copyright Act 1987 (Conditions) have been fulfilled. …

(4) There is no copyright protection:-

    1. For “any idea, procedure, method of operation or mathematical concept” – please see s 7(2A) Copyright Act 1987 and Chuah Aik King v. Keydonesoft Sdn Bhd [2018] MLRHU 426, at paras 18 and 28(2). Section 7(2A) Copyright Act 1987 has been inserted by way of Copyright (Amendment) Act 1997. If Parliament has intended that a purely functional work is not protected by copyright, Parliament would have expressly provided as such in s 7(2A) Copyright Act 1987. The legislature however has chosen not to do so in s 7(2A) Copyright Act 1987. Furthermore, s 7(2) Copyright Act 1987 provides that works shall be protected by copyright “irrespective of … the purpose for which they were created”; and
    2. If the design in question has been registered under the Industrial Designs Act 1996 (IDA) – please see s 7(5) Copyright Act 1987.”

Local Publications (M) Sdn Bhd v. Sliya Nu Printing Sdn Bhd & Another Appeal [2019] 4 MLRH 422 which provided the following with regards to the assignment of copyright ownership:

“That notwithstanding and even if the Memorandums of Agreement are the only binding contractual documents between the parties, I nonetheless find and hold that the copyright in the manuscripts of the Books could not still have resided with the defendants in the Authors’ Suit because the copyright in them has already been assigned away to the plaintiff upon the execution of the Commissioning Letters. This assignment stood on an independent footing and cl 16 of the Commissioning Letters may be treated as merely evidence of the assignment. Alternatively by virtue of s 26(2) of the CA, I find and hold that the defendants in the Author’s Suit never had copyright in the manuscripts of the Books in the first instance because it was the plaintiff who commissioned them to undertake the same. In this regard, I followed the English case of Trimingham v. Associated Newspapers Ltd [2012] EWHC 1296 where commissioning was held to mean that there must be an obligation on the part of the commissioned party to produce the work and an obligation on the part of the commissioning party to pay money or money’s worth. The copyright thus always resided with the plaintiff in the circumstances of this case.”

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