Question No.

Intellectual property is intangible property. As such it is different from other forms of

property such as land which is forms of tangible property or real or physical property. The law
relating to it is a recognition that intellectual or mental process can produce something that is
both valuable and useful. Although this intangible property will be recorded in some physical,
tangible form, the law of intellectual property recognizes the destination between the right to
exploit this intangible property and the right relating to the item which gives the intellectual
property its physical form.

Intellectual property comprises of:

a) Copyright
b) Designs
c) Patents
d) Trademarks

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 is the most cases is the author, composer, artist and sculptor where the work
originated.

Initially copyright law only applied to the copying of books. Over time other uses such as
translations and derivative works were made subject to copyright and copyright now covers a
wide range of works, including maps, dramatic works, paintings, photographs, sound
recordings, motion pictures and computer programs. The British Statute of Anne 1709, full
title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in
the Authors or purchasers of such Copies, during the Times therein mentioned", was the first
copyright statute.

Today copyright laws have been standardized to some extent through international and
regional agreements such as the Berne Convention and the European copyright directives.
Although there are consistencies among nations' copyright laws, each jurisdiction has separate
and distinct laws and regulations about copyright. National copyright laws on licensing,
transfer and assignment of copyright still vary greatly between countries and copyrighted
works are licensed on territorial basis. Some jurisdictions also recognize moral rights of
creators, such as the right to be credited for the work.

WHY COPYRIGHT ACT?

The British Statute of Anne was the first act to directly protect the rights of authors. Under US
copyright law, the justification appears in Article I, Section 8 Clause 8 of the Constitution,
known as the Copyright Clause. It empowers the United States Congress "To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors
the exclusive Right to their respective Writings and Discoveries.
According to the World Intellectual Property Organisation the purpose of copyright is
twofold:

"To encourage a dynamic creative culture, while returning value to creators so that they can
lead a dignified economic existence and to provide widespread, affordable access to content
for the public.

COPYRIGHT PROTECTION IN MALAYSIA

Copyright protection in Malaysia 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.

A unique feature of the Act is the inclusion of provisions for enforcing the Act, which include
such powers to enter premises suspected of having infringing copies and to search and seize
infringing copies and contrivances. A special team of officers is appointed to enforce the Act.

Malaysia is a signatory of the Berne Convention. Foreign works of non-Berne member

countries are also protected if they are made in Malaysia and are published in Malaysia within
thirty days of their first publication in the country of origin.

COPYRIGHT (AMENDMENT) ACT 1997

Information technology has challenged the traditional concept of copyright protection.

The Amendment Act, which amended the Copyright Act 1987, came into force on the 1st
April 1999. This Act seeks to update the law on copyright.

Amongst other things, the Amendment Act makes unauthorized transmission of copyright
works over the Internet an infringement of copyright.

The definition of a literary work now includes table or compilations "whether or not
expressed in words, figures or symbols and whether or not in a visible form". The owner of
copyright in a work including a derivative work, will have the exclusive right to control "the
transmission of a work through wire or wireless means to the public, including the making
available of a 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".

It is also an infringement of copyright to circumvent any effective technological measures

aimed at restricting access to works, removal or alteration of any electronic 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.".

These provisions are aimed at ensuring adequate protection of intellectual property rights for
companies investing in the IT and multimedia environment.
REGISTRATION OF COPYRIGHT IN MALAYSIA

Copyright protection in Malaysia is governed by the Copyright Act 1987. In Malaysia, there
is no system of registration for copyright. The Copyright Act 1987 provides for the
enforcement of the law by the Ministry of Domestic Trade and Consumer Affairs, specifically
the Enforcement Division, apart from the Police. The Act also provides the necessary clout to
the enforcement agencies to effectively carry out anti-piracy measures.

ELIGIBLITY FOR PROTECTION UNDER THE COPYRIGHT ACT 1987

A work that is eligible is fulfilment of the following conditions:

 Sufficient effort has been expended to make the work original in character.
 The work has been written down, recorded or reduced to material form.
 The author is a qualified person or the work is made in Malaysia or the work is first
published in Malaysia.

Works eligible for protection are:

o Literary works
o Musical works
o Artistic works
o Films
o Sound recording
o Broadcasts
o Derivative works
o Published editions

DURATION OF THE COPYRIGHT?

Generally, copyright subsist during the life of the author plus 50 years after his death.
However, if a work has not been published during the life time of the author, copyright in the
work continue to subsist until the expiration of 50 years, following the year in which the work
was first published. In the case of a work with joint authorship, the life of the author who dies
last is used for the purpose of calculating the copyright duration of the work.

WHEN IS A COPYRIGHT WORK CONSIDERED INFRINGED?

The copyright in a work is infringed when a person who, not being the owner of the
copyright, and without license from the owner, does or authorizes any of the following acts:

i. Reproduces in any material form, performs, shows or plays or distributes to the public,
communicates by cable or broadcast of the whole work or a substantial part thereof
either in its original or derivative form
ii. Imports any article into Malaysia for the purpose of trade or financial gains
iii. Makes, lets for hire or by way of trade, exposes or offers for sale or hire any infringing
copy
iv. Sells, lets for hire or by way of trade, exposes or offers for sale or hire any infringing
copy
v. Distributes infringing copies
 vi. Possesses, otherwise than for his private and domestic use, any infringing copy
vii. By way of trade, exhibits in public any infringing copy
viii. Imports into Malaysia, otherwise that for his private and domestic use any copy which
if it were made in Malaysia would be an infringing copy
ix. Makes or has in the possession any contrivance used or intended to be sued for the
purposes of making infringing copies or
x. Causes the work to be performed in public

The doing of (i) and (ii) above are termed as direct infringement and is actionable at the suit
of the owner.

The doing of (iii) to (x) are termed as indirect infringement and attract criminal sanction and
enforceable by the Ministry of Domestic Trade and Consumer Affairs.

LEGAL RIGHTS OF COPYRIGHT OWNERS?

Generally, owner of copyright works have the exclusive right to:

 Reproduce the work in any material form (including photocopying, recording, etc.).
 Perform, show or play the work to the public (including performing a work live, or
playing a recording or showing a film containing the work in a non-domestic
situation).
 Broadcast the work.
 Communicate the work by cable and
 Distribute copies of the work to the public by sale rental or lending.

Question 2c. Distributing a chapter of a book for a paying audience.

INFRINGEMENT

Laws of Malaysia Act 332, Copyright Act 1987, Section 3 associates the meaning of
infringing copy as reproducing the whole or a substantial part of a work in any material form
without the permission of the copyright owner.

INDIRECT INFRINGEMENT

Indirect infringement usually occurs when there is commercial use of a copyright.

Theoretically, indirect infringement concerns:

a) Importing an infringement copy

b) Processing an infringement copy
c) Selling, exhibiting or distributing an infringing copy
d) Dealing with items that are used for the making of infringing copies of specific works;
and
e) Permitting premises to be used for an infringing performance or providing apparatus
for such performances.

INFRINGEMENT OF THE DISTRIBUTION RIGHT

The copyright owner has the exclusive right of first distribution of copies of the work as
provided for under section 13 (1) (e) of the 1987 Act which refers to the sale, rental, lease or
lending of the work. Under the 1987 act the distribution right is not exhausted even after a
sale, thus entitling the right holder to control not only the rental but the copies of his work.
This applies to works (other than works of architecture or applied art), films and second
recordings. It is an infringement to rent or lend copies of such works without the permission
of the copyright owner.

Based on the above definition we can conclude that there was an infringement of copyright
due to:

Distributing part of the commercial gain without the consent of the owner as provided for
under section 13(1) (e) of the 1987 Act.

Section 13(1)(e) of the 1987 Act provides that Copyright in a literary, musical or artistic
works, a film, or a sound recording or a derivative work shall be the exclusive right to control
in Malaysia:

a) The reproducing in any material form

b) The communication for the public
c) The performance, showing or playing to the public
d) The distribution of copies to the public by sale or other transfer of ownership and
e) The commercial rental to the public of the whole work or a substantial part thereof,
either in its original or derivative form.

We can conclude that the author writers printed it and published as a book, copies of which
are sold to the public. The person who buys the physical item and the right to deal with the
copy of the book as they deem fit. However the purchaser does not buy the intangible
property; that is, the right to exploit the intellectual processes by making copies of the book
for distribution. This right to copy – copyright – belongs to the author.

Question 2d. Reproducing another’s work in details for the purpose of criticising the author.

Section 9. Copyright in published editions of work, (4) Reproduction of the typographical

arrangement of a published edition for the purposes of research, private study, criticism,
review, pr the reporting of current events does not infringe the copyright subsisting by virtue
of this section if such reproduction is compatible with four dealing:

Provided that if such reproduction is made public it is accompanied by an acknowledgement

of the title of the work and its authorship, except where the work is incidentally included in a
broadcast.

From the above section it is clearly stated that reproducing another work for the purpose of
criticising the author does not infringe the copyright act if there is an acknowledgement of the
title of the work and its authorship.