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Copyright

Definition:

Copyright protects the form of expression of ideas but not ideas themselves [

Intellectual Property Law by

Colin Goluan, 1992 at p.2

]

Branch of IP which protects the proprietary rights of authors in relation to their created works(

Khaw Lake

Tee, Copyright Law in Malaysia, p.1

)

P

Branch of IP which protects the proprietary rights of authors in relation to their created works(

Khaw Lake

Tee, Copyright Law in Malaysia, p.1

)

Entitles the author to control the reproduction of his works

Protects the economic and moral rights of the author

Categories of Copyright

Works

Literary

Artistic

Musical

Derivative Works – the translation, adaptations, arrangements and other transformations of the works eligible for copyright (s8(1)

Copyright Act 1987)

Subject matter other than original works

Literary

S3 Copyright Act 1987 – a non-exhaustive list

Covers work expressed in print or writing or reduced to a material form regardless of quality or merit of literary

Eg. Exam papers, advertisements, companies prospectus, dramatic works, tables & compilations, computer programs

Artistic

S 10 Copyright Act 1987 – artistic craftmanship and artistic works

S 7(2) CA 1987 – covers works which are artistic in nature though not of any artistic quality

Eg. Drawings, maps, plans, charts and the like, photographs, sculpture

Artistic craftmanship covers artistry as well as craftmanship and it must originates from the same person

Duration for Copyright

Life of the author plus 50 years after the author’s death

For works which remain unpublished at the time of death of the author, the duration shall expire 50 years after the publication- s 17(2) CA

1987

Subsistence & Qualification of Copyright

Work is protected if the requirements set out in s10 CA

1987 are fulfilled

Originality does not mean originality of ideas but of expression of thoughts – s 7(3)(a) CA 1987

It relates to input of effort into the creation of work

Where there is sufficient effort and skill expended by the author to produce the work

Subsistence & Qualification of Copyright

Lau Foo San v Government of Malaysia [1974] 1 MLJ

28,

Federal Court held that engineering drawings and designs for the construction of classroom by a civil engineer were original works.

University of London Press Ltd v University Tutorial

Press [1916] 2 Ch 601

- examination papers prepared by examiners were held to be original literary works

Subsistence & Qualification of Copyright

The amount of effort is a question of fact –

& Co Ltd v K & J Cooper (1924).

Macmillan

It was held in this case that study notes, in which the text consists of a reprint of selected passages, were entitled to copyright.

Subsistence & Qualification of Copyright

Where the preparatory stage and the compilation stage cannot be separated the skill and effort expended at the former can be taken into account to determine originality –

Football League Ltd v

Littlewoods Pools Ltd [1959] Ch 637 at 652.

In this case a great deal of labour, skill and ingenuity was put in to prepare the football clubs list which was subsequently turned into a chronological fixture list.

Protection of Copyright

No formalities required for registration as long as there’s subsistence and qualification of copyright as mentioned above

A copyright work should carry a notice where such right is claimed

Eg. of such notice - the word “copyright” or the letter

“©” accompanied by the name of person claiming copyright and the year of 1 st publication.

Protection of Copyright

Protection is also afforded under s42 CA 1987 – an affidavit or a statutory declaration by the owner or his agent annexing a copy of the copyright is prima facie evidence and is admissible in evidence in any proceedings under the Act.

Protection of Copyright

The Berne Convention – Malaysia acceded to it in

1/10/1990

Applies to authors who are nationals of one of the

Berne Union countries

Authors who are not nationals of one of the Berne

Union countries but their works are first published in one of the Berne Union countries, or simultaneously in a country outside the Union and in the country of the

Union (within 30 days of its first publication in a non-

Berne Union country).

Infringement

The law of copyright practically restrict the copying in whole or a substantial part of the owner’s work either in its original or derivative form

Lord Reid in Ladbroke (Football) Ltd v William Hill

(Football) Ltd [1964] 1 WLR 273

stated that

“substantiality” depended more on the quality than the quantity of what has been taken

Infringement

Hawkes & Son v Paramount Film Service [1934] 1 Ch

593

– the defendant had reproduced a substantial part of the musical work when they played it for 20 seconds out of the normal 4 minutes play. The consideration was whether the amount taken could be recognised by any person as the musical work in question. If so, then a substantial part had been taken per Lord Hanworth MR.

Infringement in derivative form

S8 CA 1987 –it covers the following:-

Translation (to another language)

Adaptation (of a book into a play)

Arrangements (of musical work)

Transformation

Collection of works

Ways in which copyright may be infringed

Reproduction into a material form includes the recording of a literary work from a book to tape or disc

Reproduction of a work in two-dimensional form into a three-dimensional form amounts to infringement. See

Peko Wallsend Operations & 3 Ors. V Linatex Process

Rubber Bhd [1993] 2 CLJ 94

Ways in which copyright may be infringed

King Features Syndicate Inc v Kleeman Ltd [1941] AC

417

– the copyright in drawing of “Pop-eye the Sailor” had been infringed by reproductions of that drawing in the form of dolls and brooches.

Performance, playing or showing of the work to the public

Ways in which copyright may be infringed

Broadcasting

Distribution to the public - once the owner has released his copyright work by sale he is taken to have consented to any future disposition. Rental and lending of books is not considered an infringement of copyright

S 13(1) CA 1987

Infringement

Direct infringement – where any one acts under s13 CA

1987 is done without the consent of the owner

(infringement of the exclusive right of the owner)

Indirect infringement (secondary infringement) – include the sale, distribution/ importation of works incorporating copyright works (s36(2) CA 1987)

Direct Infringement

1) Objective similarity – comparing the similarities and differences (either visually or aurally) between the original work and the infringing copy. Two computer programs which produces the same function/ output/ look and feel does not necessarily satisfy the objective similarity test.

Direct Infringement

2) Causal connection – sufficient objective similarities may raise the inference of a causal connection but the defendant may rebut this presumption

3) Infringement of the substantial part of the work

Remedies to Infringement

Damages

Injunction

Anton Piller

Delivery

Restriction on importation

Damages

Malaysia – s36(2) whether it includes exemplary damages remains open

Singapore – s119(4) includes exemplary damages

Australia – s115(4) includes exemplary damages

Offences Under CA 1987

S 41 CA – on conviction of any of the offences under s41(1)(a)-(f) CA, shall be liable to a fine of not less than

RM2,000.00 and not more than RM20,000.00 and/or imprisonment of not exceeding 5 years.

On conviction of the offence under s41(1)(g) CA, shall be liable to a fine of not less than RM4,00.00 and not more than RM40,000.00 and/or imprisonment not exceeding 10 years.

Offences Under CA 1987

On conviction of the offences under s41(1)(h), (i)&(j)

CA, shall be liable to a fine not exceeding

RM250,000.00 and/or imprisonment of not exceeding 3 years.

Fair Dealing

Malaysia – s13(2)(a) the right to control does not include fair dealing for purpose of non-profit research, private study, criticism etc…

Singapore s35(2) and Australia s40(2) lay down various factors to be taken into account when considering the question of fair dealing

Fair Dealing

The factors are:-

Purpose and character of the dealing

The nature of the work

The amount and substantiality of the parts taken

The effect of the dealing

The availability of the work in the market

N

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