12TH ABU COPYRIGHT COMMITTEE MEETING AND SEMINAR
IN BRUNEI ON 15 -17 MEI 2006.
COUNTRY PAPER ON
COPYRIGHT ISSUES IN MALAYSIA
1.
INTRODUCTION
Malaysia’s image of once being alleged as a leading exporter of pirated
products should be cleared following the effective anti-piracy effort taken over
the years. The efforts include the amendment of several laws and holding
talk with countries where the product was originally produced.
2.
WHAT IS COPYRIGHT?
Copyright is defined as a right to authorise the use of one’s work in different
ways. It is the permission or the right to copy. The emphasis is not so much
on the right to copy but on the right to prevent others from unfairly taking
advantage ownership of the original owner of the copyright, who in most
cases is the author, composer, artist and sculptor where the work originated.
And also it is very difficult to give an address on copyright generally as laws
differ from country to country.
In Malaysia, copyright protection is governed by the Copyright Act 1987 which
provides comprehensive protection for copyrightable works. The Act outlines
the nature of works eligible for copyright (which includes computer software),
the scope of protection, and the manner in which the protection is accorded.
The Copyright Act 1987 provides for the enforcement of the law by the
Ministry of Domestic Trade and Consumer Affairs (MDTCA), specifically the
Enforcement Division, apart from the Police. This Act also provides the
necessary clout to the enforcement agencies to effectively carry out antipiracy measures.
3.
WHAT IS ‘SIGNAL’ PIRACY?
Piracy is not a legal term, nor is it precise. It is some times used to refer an
authorized use of protected copyright or neighbouring right material.
In today’s competitive world, broadcasters’ have demonstrated how they need
as never before to have proper means to protect and authorize or prohibit use
by others of their signals in upstream or downstream market.
Continued provision by broadcasters’ of programming to ensure a contentrich Information Society, including information for the general public on facts
and events from all spheres of public life, is endangered as long as protection
of signal is insufficient.
In 1996 the WIPO Copyright Treaty (WCT) and WIPO Performances and
Phonograms Treaty (WPPT) updated rights of authors, as well as performers
and producers of phonograms. Since then, thorough discussion on upholding
broadcasters’ right has taken place in 11 sessions of the WIPO Standing
Committee on Copyright and Related Rights (SCCR) and in regional
consultations. Over 7 years, more than 10 governments from both the
developed and developing countries in different parts of the world have
submitted proposed treaty texts for discussion. The overwhelming majority of
government agree that it is now high time to adopt a new Treaty to update
broadcasters’ protection.
4.
LATEST DEVELOPMENT IN MALAYSIA’S COPYRIGHT LAW
Spurred by a desire to enhance the attractiveness of its Multimedia Super
Corridor (MSC) to high-tech investments, Malaysia has already taken a
number of steps toward updating its copyright laws to meet the challenges of
the internet era. In response to the explosion of the internet industry, The
Malaysian Copyright Act 1987 was replaced by the Copyright Act 1997 which
came into force on the 1st April 1999. The provision of the new Act makes
unauthorised transmission of copyright works over the Internet and
infringement of copyright. As for the definition of the literary work, it now
includes table of compilations “whether or not expressed in words, figures of
symbols and whether or not in a visible form”.
The amended Act encompasses some of the standards contained in the WCT
and the WPPT, such as recognizing the copyright owner’s exclusive rights to
control work that is transmitted via wire or wireless means to the public,
including making available this work to the public in such a way that members
of the public may access the work from a place and at a time individually
chosen by them.
This Act certainly would help to overcome any effective technological
measures aimed at restricting access to work, removal or alteration of any
electronics rights management information without authority, or distribution,
importation for distribution or communication 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. All in all, the new
Act make it clear that an author has the right to be identified and has moral
right against any mutilation and distortion of his work.
These provisions are aimed at ensuring adequate protection of intellectual
property rights for companies investing in the IT and multimedia environment.
5.
COURT DISCUSSION AND PENDING CASES ON COPYRIGHT
.
A new recorded case on the copyright would be the lawsuit by the Recording
Industry Association of Malaysia against a shopping complex in the central of
Pahang for renting out it’s premised to VCD pirates. To win conviction against
the culprit in court, for example, an offender was fined RM7.3 million besides
ordered to serve a three year jail sentence in January last year.
In one of the raids conducted by the enforcement officers, 31 computers and 211
copies of suspected unlicensed software from five companies were seized. If
found guilty in a court of law the directors could face jail terms up to five years,
on top of a possible fine of anywhere between RM2,000.00 to RM20,000.00 for
each infringing software.
In December 1998 Sun Movie sued against US Motion Pictures. Section 2 of
Malaysia’s Copyright Act held that a different on ownership and copyright must
be executed by the representative of the company. It is very costly to bring a
witness from US to give live testimony and it was a threat to MDTCA. This case
is still pending.
Besides this, in May 1999, the local recording association filed a case against
Sony Music Entertainment vs Wilayah Computer. MDTCA agreed to allow test
cases to be filed in which claims of subsistence of ownership of copyright would
be based on affidavits filed by the local anti-piracy agent of US Films Studios.
This test case is still pending.
6.
OTHER COPYRIGHT ISSUES
The looming unauthorised copyrighted materials has made headlines and tainted
the intellectual property industry. Due to this in 1999, Malaysian political leader
denounced optical media piracy, and enforcement authorities mobilised to
conduct and active programme of raiding retailers and other vendors of pirate
products within the country. In his speech addressing a roundtable talk on
Intellectual Property Rights Co-operation between Malaysia and United States in
Kuala Lumpur on 20 April 2006, the Domestic Trade and Consumer Affairs
Ministry (MDTCA), Datuk Mohd Shafie Apdal said efforts are taken to amend
several laws and holding talks with countries where the products were originally
produced. This he said should be able to clear Malaysia’s image of once being
alleged as a leading exporter of pirated products. This is continued by holding
discussions with countries like Hong Kong and some ASEAN countries on ways
to overcome the influx of such products in this part of the region.
Continued enforcement efforts my MDTCA had led to 1,175 anti-piracy cases
under the Copyright Act 1987 to be recorded in 2005, compared to only 950
cases in 2004.
An interagency task force under the direction of MDTCA launched “Ops
Bungkus” to crack down on optical media piracy. By mid-January 2000, over
10,700 raids had been carried out by the task force throughout the country, with
some operations involving more than 100 officers. On the retail level, large
quantities of pirate product were seized, and the raids garnered widespread
publicity. The Hologram sticker programme under the Trade Description (Original
Label) Order 2002 of the Trade Descriptions Act 1972 (Act 82), which requires all
distributors to pay for and apply stickers inside the shrinkwrap of all optical discs
of copyrighted materials distributed in Malaysia has tremendously reduced the
number of pirated materials.
Another reform in the Copyright Act would be the amended Copyright Act 2003,
Act A1195, which was enforced on August 14, 2003, whereby strengthened
criminal penalties and generally gives enforcement authorities more ability to
carry out enforcements against copyright piracy, for example Section 50A gives
MDTCA officials the ability to carry out arrests for copyright piracy.
The Malaysian Copyright Act provides for a Copyright Tribunal whose function is
to grant Licenses to produce and publish in the National Language a translation
of a literary work written in any other language. The Act is currently amended to
expand the power of the tribunal to include arbitration of disputes relating to use
of copyright works.
7.
CONCLUSION
The raids by Malaysian enforcement agencies indicate the country’s stand to
wipe out the widespread of copyrighted materials. One of the key indicators to
this stand is the amendment of governing Copyright Laws and increasing number
of filed cases. As said by Datuk Mohd Shafie Apdal in his continuing speech,
while the government would continue to take the necessary steps to put an end
to piracy and counterfeiting activities, he reminded (Intellectual Property) IP
owners of their roles to protect their own products. “Take civil actions against the
violators of your IP. The IP owners, not the government, are the immediate
losers”.
NAGASVARE KRISHNASAMY
RTM MARKETING
KUALA LUMPUR
MALAYSIA.