COPYRIGHT FLEXIBILITIES IN
MALAYSIA
ROKIAH ALAVI
Department of Economics
International Islamic University Malaysia
Workshop on Empirical Study of the Social and Economic Benefits of
Copyright Flexibilities, 26th September 2013, American University
Washington College of Law, Washington DC
2
Concerns related to copyright flexibilities in Malaysia
1. Malaysia has not taken advantage many of
the flexibilities available in the copyright
laws:
• Some limitations and exceptions not incorporated in
the Malaysian national copyright laws. This means
copyright owners are granted far more rights than
they need to.
• In some cases, even though the exceptions are
included in the national law, they have never been
utilized.
2. Ongoing TPPA free trade agreement –the
US is pushing for higher copyright
protection – would narrow the flexibilities
in the copyright law.
BRIEF OVERVIEW
ABOUT MALAYSIA
4
Economic and Social Background
• Malaysia is a plural, heterogeneous country.
• Independence from British occupation in 1957.
• Composition
• Ethnic: Malays and Other Bumiputera 67.4%; Chinese
24.6%; Indians 7.3%: Others 0.7%
• Religion: Islam 61.3%, Buddhism and Other Chinese
Religions 21.1%; Christianity 9.2%; Hinduism 6.3%
• Malaysian economy has successfully transformed
over last 50 years (despite some social tensions).
• From a ‘rubber and tin’ economy, it has
diversified, industrialized and undergone
significant structural change
• Upper middle income country, targeting developed
status by 2020.
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GEOGRAPHICAL LOCATION
London
Toronto
Washington DC
Los Angeles
Miami
Mexico City
Warsaw
Frankfurt
Paris
Moscow
Beijing
Chengdu
Guangzhou
Milan Istanbul
Cairo
Jeddah
Seoul Tokyo
Shanghai Taipei
Mumbai
Hong Kong
Dubai
Manila
Ho Chi Minh City
Phnom Penh
Chennai
Bangkok
Singapore
Jakarta
Santiago
Kuala Lumpur
MALAYSIA
Sao Paulo
Buenos Aires
Johannesburg
Sydney
Malaysia’s Key Economic Indicators
2011
2012
2013
28.96
29.34
29.71Q1
GDP (%) Growth (constant 2005)
5.1
5.6
4.1Q1
Inflation (%)
3.2
1.6
1.8Q1
9,508
9,890
10,526f
3.1
3.0
3.1Q1
Population (million)
Per Capita Income (US$)
Unemployment (%)
Source: Central Bank of Malaysia/Department of Statistics Malaysia/MATRADE
GDP By Industrial Origin
GDP Contribution (%)
Sector
1970
1990
2000
2010
2011
2012
2013f
Agriculture
33.6
19.3
8.8
7.3
7.7
7.3
7.2
Mining
7.2
9.8
6.7
7.0
8.8
8.5
8.3
Construction
3.8
3.4
3.4
3.3
3.0
3.3
3.5
Manufacturing
12.8
26.5
32.6
27.6
25.1
25.0
25.0
Services
42.6
42.1
53.0
57.7
54.2
54.5
54.8
f = Forecast
Source : Treasury Economic Report 2012/2013 & DOSM
COPYRIGHT LAWS IN MALAYSIA
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Overview of Copyright Laws
• First enacted in 1969 – common law system.
• The 1987 Copyright Act governs copyright
protection in Malaysia.
• Malaysia is a member of:
1. Berne Convention (1990)
2. TRIPs Agreement (1995)
3. WIPO Copyright Treaty (2012)
4. WIPO Performance and Phonogram Treaty (2012)
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Ownership Rights and Duration in Literary and Artistic Works
Category
Exclusive Ownership Rights
Duration of Protection
Literary works
Musical works
Artistic works
Films
•
•
•
Reproduction of the work in
any material form
Performing, showing or
playing the work to public
Communication of the work
to public
Distribution of copies to
public by sale or other
transfer of ownership
Commercial rental to public
•
Same as above
•
•
•
•
Sound recordings
•
•
•
Broadcasts
•
•
•
•
•
Source: Kanapathy (2008)
Recording
Reproduction
Rebroadcasting
Performance, showing or
playing to public in a place
where admission fee is
charged
Right to take still
photographs from a TV
broadcast
•
Life of the author plus 50
years
If published after death,
copyright lasts for 50 years
from date of publication
If joint authorship, life or
author who dies last
applies
50 years since first
publishing
If unpublished, year of
recording applies
50 years from year of
making broadcast
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Limitations and Exceptions
1. Parallel Import
• Malaysia adopts domestic exhaustion – copyright
owners have the right to control importation of
works.
• Parallel importation of any copyrighted items is
prohibited.
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Limitations and Exceptions
2. Compulsory Licensing
• The Berne Convention allows government to issue
license for making translation and print - “works
published in printed or analog forms of reproduction” –
three years after the first publication
• Only for the purpose of teaching, scholarship or
research.
• Section 31(3)(a) of Malaysian Copyright Law - allows
CL for translation work to national language – within
one year after the first publication of the work (Azmi,
2008).
• Never utilized this provision.
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Limitations and Exceptions
3. Anti-Competitive Practices
• Article 40 of TRIPs provides ..”that national
legislation may adopt appropriate measures to
prevent or control licensing practices or conditions
that may constitute an abuse of IP rights and have
an adverse impact on competition in the relevant
market” (CI, 2008).
• Malaysia did not include this provision in the
national legislation (CI, 2008).
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Limitations and Exceptions
4. Anti-Circumvention
• The WCT requires members to “provide adequate legal
protection and effective legal remedies against
circumvention of effective technological protection
measures that are used by authors in connection with the
exercise of their rights”.
• Malaysia adopted this provision in the copyright law even
before it became WCT member (joined only in December
2012)
15
Trans Pacific Partnership Agreement
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Brief Background
• The TPP is a regional free trade agreement that is still
being negotiated among 12 countries: Australia, Brunei,
Canada, Chile, Japan, Malaysia, Mexico, New Zealand,
Peru, Singapore, US and Vietnam.
• Ambitious and comprehensive FTA – aims to liberalize
almost areas related to goods and services and intends to
go beyond the commitments established in WTO.
• 19th round so far and expected to be concluded by end of
2013.
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Under TPPA, US has sought increased IP protection..
• US is pushing for “a standard of protection similar to that
•
•
•
•
•
•
found in US Law”
Goes beyond TRIPs, WCT and WPPT
Extending protection term by another 20 years plus
(+75years)
Expand National Treatment obligation – full NT
Create new type of rights that are not covered under
existing copyright law.
Reduce possibilities of limitations and exceptions
Expand obligations on Technological Protection Measures
(TPM)
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Limitations and exceptions in Malaysian CL therefore are limited
… benefit accrues to copyright owners - mostly MNCs
• This is alarming because Malaysia is a net importer of
copyrighted products and services.
• Production and exports of copyrighted products and
services are negligible.
• Tertiary education sector highly dependent on imported
books, journals, databases, software and other
educational materials – most affected by narrow
flexibilities.
• Impact – limits access to knowledge, curtails creativity
and productivity and slows down economic growth.
19
COPYRIGHT-BASED INDUSTRIES IN MALAYSIA
• The growth of the industry has been outstanding –
between 2000 and 2005 (Kanapathy, 2008):
• Value-added in real terms grew 11.1% (surpass national economic
growth rate of 6.6%).
• Contribution to GDP increased from 4.7% to 5.8%
• Employment grew 10.7% (as result of this, share in national
employment rose from 5.3% to 7.5%).
• Key industries in Malaysia are:
1. Press and literature;
2.
Software and databases;
3.
Motion and video
•
These industries accounted for 88% of value added
and 91% of total employment of core copyright
industries (there are 9 subsectors under the core
copyright industries as classified by WIPO).
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PRESS AND LITERATURE SECTOR
• Publishing industry caters for small domestic market,
•
•
•
•
and mainly engaged in publication of school textbooks
and related materials (70%). (Kanapathy, 2008).
In 2004, the publishing industry worth US$405 million
(Ng, 2005). In comparison, in US its worth about $30
billion.
Copyright infringements especially illegal copying (in the
universities and colleges) are common.
Copyright awareness is low.
Copyright Control Centre (CCC) – medium to control the
photocopying of copyrighted works by legitimate
photocopying business (Azmi, 2008 –not successful so
far.
21
PRESS AND LITERATURE SECTOR
• 60% of academic and university books are
•
•
•
•
•
imported (Ng,2005).
In 2007, 48% of books were imported from US, UK
(17%), Taiwan (8%), China (8%) and HK (4%).
Imported books are distributed by regional
distributors, mainly located in Singapore and HK.
No direct purchase from foreign publishers is
allowed.
This is to control parallel importation.
Foreign publisher do not grant license to publish
local reprints or editions – small market.
Impact – limited supply and higher costs.
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MOTION PICTURES AND VIDEO
• Local film industry consists of largely Malay movies
•
•
•
•
for domestic market.
Malaysian market is multilingual – high number of
imported films. In 2007, imported more than 9,000
films.
About 70% of the total collection from films are
Hollywood movies, followed by 11% Malay, 10%
Chinese and 5% Indian movies.
Incidence of piracy is high but on the declining
trend due to improved DVD technology.
Cable TV expensive and limited programmes –
high cost.
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SOFTWARE AND DATABASES
• The fastest growing sector in Malaysia – original local
•
•
•
•
content in the area of education, entertainment,
commerce and industrial activities – both for local and
export market (Kanapathy, 2008).
Software market worth about US$1 billion.
Mostly imported through licensed agents - expensive.
Online databases in libraries acquired through licensing
agreements – high cost (Azmi, 2008). As a result,
libraries have to select only highly demanded
databases and discontinue subscription of print version
of journals.
Sofware piracy rate in Malaysia is relatively high.
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Concluding Remarks
• Studies show that weakening of flexibilities in the
copyright laws leads to static and dynamic inefficiencies
and reduction in economic welfare.
• Lack of awareness on the importance of these flexibilities
in Malaysia – public and policy makers.
• Reflected in the debates and discussion on the possible
impacts of stronger IP protection under TPPA – focus on
patent and access to medicine.
• There is a need to undertake research on copyright
flexibilities – so far there is no economic analysis on this
has been done in Malaysia.