COPYRIGHT

(PART 1)

DR MA KALTHUM ISHAK
AZMAN HASHIM INTERNATIONAL
BUSINESS SCHOOL
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 Outline

1. What is Copyright
2. Requirement for Copyright
3. Scope of protection under Copyright law
4. Copyright law and regulations
5. Voluntary Notifications

Ma Kalthum Ishak (PhD, LL.M, LL.B)

• An exclusive rights given to the right holders for a certain duration
• Rights refers to the right to control
• Copyright protection in Malaysia is based on the Copyright Act 1987

AUTHOR
COPYRIGHT OWNER
PERFORMERS

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 • To reproduce

Exclusive • To communicate to the public

Rights
• To perform, show or play to the
public

• Distribute copies to the public

• Rent commercially to the public

RIGHT TO
CONTROL

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 COPYRIGHT

Literary

Broadcast
Music

Film
Art

Sound
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 Justification for copyright

 Induce authors to create

 Polygram Records Ltd & 11 Ors v Asia Amusements
(Malaysia) Sdn Bhd
 Abdul Wahab Patail J stated that the protection of copyright
was on essential foundation to the creation of creative society
 Reward
 Legal protection
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 COPYRIGHT REQUIREMENTS

Copyright Originality
s. 7 (3)(a)

Written down, recorded,

reduced to material form
s. 7 (3)(b)

Fall within the

categories of work
entitled for copyright

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ORIGINALITY REQUIREMENTS

Natural person Originality No novelty

Sufficient Effort

Skill Effort Judgment

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Originality - Intro

 Not defined under CA 1987

 Radion Trading Sdn Bhd v Sin Besteam Equipment Sdn Bhd & Ors
 Lord Pearce – the word ‘original’ did not demand original or inventive thought
but only that the work should not be copied and should originate from the
author

Skill Judgment Effort

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Originality requires sufficient effort

 S. 7(3)(a) – sufficient effort has been expended to make the work original in
character
 Megnaway Enterprise Sdn Bhd v Soon Lian Hock
 ‘sufficient effort’ were linked to the degree of effort, skill or labour expended in the
creation of work.
 All these elements should be read cumulatively.
 Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd
 Nordic Water Products Aktiebolag & anor v Sam McCoy Manufacturing Sdn
Bhd
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 Originality is not equated with newness or quality

 S. 7 (3)(a) : the term ‘original’ should not be equated with

its ordinary dictionary meaning nor should it be taken to
mean new or innovative
 Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd
 The word ‘original’ in s.7(3)(a) did not mean that the work must
the expression of original or inventive thought
 The concept is differed with patent law and industrial design

 Radion Trading Sdn Bhd v Sin Besteam Equipment Sdn Bhd

& Ors
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 Originality requires work to originate from
author

 Another person who creates his own independent work without

recourse to any act of copying has created an original work even if
his work happens to be identical to an earlier work

 Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd

 The work may be original and at the same time infringing (s.7(4))

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Can mere labour constitute “Sufficient effort”?

Kiwi Brands (M) Sdn Bhd v Multiview Enterprises Sdn Bhd

V
Hardial Singh Hari Singh v Daim Zainuddin

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Reduction to material forms

material forms
Reduction to Fixation in a material
form
Idea-expression
dichotomy

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Fixation in a material form

 S.7 (3)(b): A literary, musical or artistic work shall not be eligible for
copyright unless the work has been written down, recorded or otherwise
reduced to material form.

 S.3 : material form, in relation to a work or a derivative work, includes

any form (whether visible or not) of storage from which the work or
derivative work, or a substantial part of the work or derivative work can
be reproduced

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Idea-expression dichotomy

 Does not protect idea but protect expression of idea

 S. 7 (2A): Copyright protection shall not extend to any idea, procedure, method
of operation or mathematical concept as such.

 Onestop Software Solutions (M) Sdn Bhd v Masteritec Sdn Bhd

 Saleha bt Husin lwn Ab Wahid b Nasir & 2 lagi

 Goodyear Tire & Rubber Company & anor v Silverstone Tire and Rubber Co Sdn
MaBhd
Kalthum Ishak (PhD, LL.M, LL.B)
 Qualification for
copyright
protection (S. 10)

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Factors

Status of Place of Work made Government

author publication in Malaysia copyright

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 1) Status of Author

 S. 10 (1):
 Copyright shall subsist in every work eligible for copyright of which the author or in the
case of a work of joint authorship, any of the authors is, at the time when the work is
made, a qualified person

 Meaning of qualified person (S.3):

 (a) in relation to an individual, means a person who is a citizen of, or a permanent
resident in, Malaysia; and
 (b) in relation to a body corporate, means a body corporate established in Malaysia
and constituted or vested with legal personality under the laws of Malaysia;

Ma Kalthum Ishak (PhD, LL.M, LL.B)

Effect of the Literary, musical, artistic works and films:
Reg 3(e): citizen/resident of Berne Convention = qualified person
Copyright Reg 3(f): body corporate established under the laws of any Berne Convention
(Application countries = qualified person

to Other
Countries) Sound recordings and broadcast:

Regulations Reg 4(1)(e): citizen/resident of WTO = qualified person

Reg 4(1)(f): body corporate established under the laws of WTO countries =
1990 qualified person

Published edition:
Reg 4(1)(e) read together with Schedule 3 of the Regulation:
- Publisher is qualified person if he is citizen/resident of UK.
- Publisher is qualified person if he is body corporate established in UK

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 2) Place of Publication

 S. 10 (2): Copyright shall also subsist in every work which is

eligible for copyright and which—
 (a) being a literary, musical or artistic work or film or sound recording
is first published in Malaysia;
 (b) being a work of architecture is erected in Malaysia or being any
other artistic work is incorporated in a building located in Malaysia;
 (c) being a broadcast is transmitted from Malaysia.

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Publication
V
First Published
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 Publication

 S. 4(1):
 a literary, musical or artistic work, or an edition of such a work, shall be deemed to have
been published only if a copy or copies of the work have been made available with
the consent of the author or of any person lawfully claiming under the author in a
manner sufficient to satisfy the reasonable requirements of the public, whether by sale
or otherwise;
 a film shall be deemed to have been published only if a copy or copies of the film have
been sold, let on hire, or offered or exposed for sale or hire, with the consent of the
author or of any person lawfully claiming under the author in a manner sufficient to
satisfy the reasonable requirements of the public;
 a sound recording shall be deemed to have been published only if a copy or copies of
such sound recording have been made available with the consent of the author or of
any person lawfully claiming under the author in a manner sufficient to satisfy the
reasonable requirements of the public;
Ma Kalthum Ishak (PhD, LL.M, LL.B)
  What is reasonable requirement:
 Television Broadcast Ltd & Ors v Mandarin Video Holdings Sdn Bhd
 The release for sale of 6 copies of a song was sufficient
 The requirement was met as long as the copies reached the dealers
Breach of
other laws
does not
 Consent of author prevent for
copyright
 Asia Television Ltd & Anor v Viva Video Sdn Bhd ownership
 MediaCorp News Pte Ltd & Ors v MediaBanc (JB) Sdn Bhd & Ors

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 First publication

 S. 4 (3): For the purposes of this Act, a publication shall be

deemed to be a first publication in Malaysia if—
 (a) the work or performance was first published in Malaysia and
not elsewhere; or
 (b) the work or performance was first published elsewhere but
published in Malaysia within thirty days of such publication
elsewhere.

Ma Kalthum Ishak (PhD, LL.M, LL.B)

Effect of the Literary, musical, artistic works and films:
Copyright Reg 3(a): Published in any Berne Convention countries
(Application Honda Giken Kogyo Kabusihiki Kaisha v Allied Pacific Motor
to Other (M) Sdn Bhd & Anor
Countries) Dabur India Ltd v Nagasegi Sdn Bhd & Ors
Regulations
1990 Sound recordings and broadcast:
Reg 4(1)(a): Published WTO
Rock Records & Tapes Co Ltd & 5 Ors v Season Kaaroke Sdn
Bhd & 4 Ors
MediaCorp News Pte Ltd & Ors v MediaBanc (JB) Sdn Bhd &
Ors
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 3) Work Made in Malaysia

 S. 10 (3): Notwithstanding subsections (1) and (2), copyright shall

subsist, subject to this Act, in every work eligible for copyright if the
work is made in Malaysia.

 Hexagon Tower Sdn Bhd v Polydamic Holdings Sdn Bhd & 3 Ors
 Held: drawing completed in 1995. the word ‘made’ denoted the time
when P’s drawing were actually completed.

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 4) Government Copyright

 S. 11.
 (1) Copyright shall subsist in every work which is eligible for copyright and
which is made by or under the direction or control of the Government and
such Government organizations or international bodies as the Minister may
by order prescribe.

 (2) Section 10 shall not be taken to confer copyright on works to which this
section applies.

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Works Eligible for
Copyright

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Musical
Literary Artistic
works

Sound Published
Films
recordings edition

Derivative
works
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 1) Literary

 S. 3 : literary work includes—

 (a) novels, stories, books, pamphlets, manuscripts, poetical works and other writings;
 (b) plays, dramas, stage directions, film scenarios, broadcasting scripts, choreographic works
and pantomimes;
 (c) treatises, histories, biographies, essays and articles;
 (d) encyclopedias, dictionaries and other works of reference;
 (e) letters, reports and memoranda;
 (f) lectures, addresses, sermons and other works of the same nature;
 (g) tables or compilations, whether or not expressed in words, figures or symbols and whether
or not in a visible form; and
 (h) computer programs
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 Issues

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ▪ S. 7 (2): Works shall be protected irrespective of their
quality and the purpose for which they were created

a) Merit ▪ Eg: tables, compilations and computer programs are

literary works but they highly likely did not attained any
literary merits

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ▪ Usage of ‘includes’ under Section 3 = list is
not exhaustive
▪ University of London Press Ltd v
University Tutorial Press Ltd
b) What ▪ Held: cover work which is expressed in
qualifies as print or writing irrespective of the question
‘literary works’ whether the quality or style is high
▪ Delimec Hygiene Sdn Bhd v EMIC (M)
Sdn Bhd
▪ Exxon Corp & Ors v Exxon Insurance
Consultants International Ltd
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 ▪ Definition: a work of action with or without
words or music, which is capable of being
performed before audience
▪ Can be in any form so long as it is recorded
▪ Saleha bt Husin lwn Ab Wahid b Nasir & 2
c) Dramatic lagi
Works
▪ Mohd Ramly @ Dzulkifli bin Ismail v
Sarimah Film Production Sdn Bhd & Anor
▪ Manuscript which contained detailed descriptions of
various scenes and sub-scenes of a stage play but no
dialogue came within the category of a literary works

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ▪ No definition in the CA
▪ Skill ? Labour? Effort?
▪ Hardial Singh Hari Singh v Daim Zainuddin
▪ Kiwi Brands (M) Sdn Bhd v Multiview
Enterprises Sdn Bhd
c) Tables or
Compilations ▪ Copyright exists separately from and
independently of the copyright in the items
themselves
▪ Penerbit Fajar Bakti Sdn Bhd v Cahaya Surya
Buku dan Alat Tulis

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ▪ S. 3 : ―means an expression, in any language,
code or notation, of a set of instructions
(whether with or without related information)
intended to cause a device having an
information processing capability to perform a
particular function either directly or after either
or both of the following:
e) Computer ▪ (a) conversion to another language, code or
Programs notation;
▪ (b) reproduction in a different material form

▪ Alfa Laval (M) Sdn Bhd v Ng Ah Hai & Ors

▪ Onestop Software Solutions (M) Sdn Bhd &
Anor v Masteritec Sdn Bhd &MaOrs
Kalthum Ishak (PhD, LL.M, LL.B)
 2) Musical

 S. 3: ―musical work means any musical work, and includes works

composed for musical accompaniment

 Hyperion Records Ltd v Dr Lionel Sawkins

 The essence of music is combining sounds for listening to in order to produce
effects of some kind on the listener’s emotions and intellect.

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 3) Artistic Works

 S. 3: ―artistic work means—

 (a) a graphic work, photograph, sculpture or collage, irrespective
of artistic quality;
 Peko Wallsend Operations Ltd & 3 Ors v Linatex Process Rubber Bhd

 (b) a work of architecture being a building or a model for a

building; or
 (c) a work of artistic craftsmanship, but does not include a layout-
design within the meaning of the Layout-Designs of Integrated
Circuits Act 2000
Ma Kalthum Ishak (PhD, LL.M, LL.B)
 Graphic

Types
Sculpture
and Logo
Collage

Photograph

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ▪ Include any painting, diagram, drawing, map,
chart, plan, engraving

a) Graphic ▪ Onestop Software Solutions (M) Sdn Bhd &

Anor & Masteritec Sdn Bhd & Ors [2009] 8
MLJ 528

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ▪ Logos which are used as trade marks have been
held to be artistic works
▪ BP PLC v Mohd Shariff Abdullah
▪ Copyrights subsists in P’s well known BP Helios
Logos and this was infringed by the D who had
b) Logos used the logo in respect of it’s letterhead and
business card
▪ Dabur India Ltd v Nagasegi Sdn Bhd & Ors
▪ P, company based in India, selling toothpaste
under the TM ‘Promise’ and ‘Miswak’

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 ▪ Not confined to the traditional mode of
photography but is worded in a technologically-
c) Photographs
neutral manner

Ma Kalthum Ishak (PhD, LL.M, LL.B)

d) Sculpture and ▪ S. 3: sculpture‖ includes a cast or model made for
the purposes of a sculpture
Collage

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 4) Films

 S. 3: means any fixation of a sequence of visual images on material of any

description, whether translucent or not, so as to be capable by use of that
material with or without any assistance of any contrivance—
 (a) of being shown as a moving picture; or
 (b) of being recorded on other material, whether translucent or not by the use of
which it can be so shown
and includes the sounds embodied in any soundtrack associated with a film

 Polygram Records Ltd & 11 Ors v Asia Amusements (Malaysia) Sdn Bhd

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 5) Sound Recording

 S. 3: means any fixation of a sequence of sounds or of

a representation of sounds capable of being
perceived aurally and of being reproduced by any
means, but does not include a soundtrack associated
with a film

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 6) Broadcast

 S. 3: means a transmission, by wire or wireless means,

of visual images, sounds or other information which—
 a) is capable of being lawfully received by members of the
public; or
 b) is transmitted for presentation to members of the public,

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 7) Published editions of works

 S. 9. (1): Copyright shall subsist, subject to the provisions of this Act, in

every published edition of any one or more literary, artistic or
musical work in the case of which either—
 (a) the first publication of the edition took place in Malaysia; or
 (b) the publisher of the edition was a qualified person at the date of the first
publication thereof

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 8) Derivative Works

 S. 8(1): The following derivative works are protected as

original works:
 (a) translations, adaptations, arrangements and other
transformations of works eligible for copyright; and
 (b) collections of works eligible for copyright, or compilation of mere
data whether in machine readable or other form, which constitute
intellectual creation by reason of the selection and arrangement of
their contents.

Ma Kalthum Ishak (PhD, LL.M, LL.B)

 Authorship &
Ownership

Ma Kalthum Ishak (PhD, LL.M, LL.B)