530 Malayan Law Journal [2019] 1 MLJ

Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors A

COURT OF APPEAL (PUTRAJAYA) — CIVIL APPEAL NO

W-02(IPCV)(W)508–03 OF 2016
B
ABANG ISKANDAR, BADARIAH SAHAMID AND MARY LIM JJCA
29 MARCH 2018

Copyright — Literary works — Infringement — Appellant author of novel sued

respondents for infringing his copyright in the novel by copying his novel for a movie C
— Whether striking similarities between the novel and movie could not be passed
off as mere coincidence — Whether careful comparison showed the movie
substantially copied novel — Whether appellant had shown causal connection
between the novel and the movie as novel freely available to the public before the
D
movie was made — Whether appellant’s allegations on his blog that respondents
had copied his novel for their movie was justified and could not amount to
defamation of the respondents

The appellant was the author of a novel titled ‘Aku Bohsia’ (‘the novel’) which E
was published in 1995. The first respondent was the lead actor, lead
scriptwriter and director of a movie titled ‘Bohsia: Jangan Pilih Jalan Hitam’
(‘the movie’) which was released in 2009. The movie was produced by the
second respondent and distributed by the third respondent. The appellant sued
the respondents for infringing his copyright in the novel after finding that, F
inter alia, in theme, plot, characters and message, the movie was substantially
the same as his novel. In his statement of claim, the appellant set out the several
significant similarities between his novel and the movie. The respondents
denied the appellant’s claim and said they had never read or heard of the novel
and that any similarities between the movie and the novel were purely G
coincidental as the subject-matter of ‘bohsia’ girls and ‘mat rempit’ were
matters within the common knowledge of the population. The respondents
counterclaimed against the appellant for damages for defamation over two
articles he had written on his blog alleging that the respondents had copied his
novel for the movie. The High Court dismissed the appellant’s claim, allowed H
the respondents’ counterclaim and awarded them RM100,000 in damages.
The trial judge found that any similarities between the novel and the movie was
not the result of copying; that the issues dealt with had been endemic in the
country since before the novel came into being and were ‘commonplace,
unoriginal or consisted of general ideas’ over which the novel could not claim I
exclusive ‘ownership’. The trial judge also found that the appellant failed to
prove a causal connection between the novel and the movie to show that the
movie was copied from the novel. The appellant appealed against both the
dismissal of his claim and the allowing of the counterclaim.
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 531

A Held, unanimously allowing the appeal, setting aside all orders made by the
High Court, granting the reliefs sought by the appellant in his statement of
claim and ordering general damages payable to him to be assessed:
(1) On a careful comparison of the similarities enumerated in para 10 of the
B appellant’s statement of claim, it was apparent that there was substantial
similarity between the novel and the movie that could not be written off
as mere coincidence (see para 33).
(2) While the ‘bohsia’ phenomenon was a social ill that was prevalent in the
1990s and the issue of ‘mat rempit’ remained a social issue till today, the
C
similarities between the novel and the movie were so numerous and
related not just to the general theme, plot, names of characters and places,
but more importantly, character traits — even specific events and
relationships in the lives of the characters, that cumulatively could not be
D termed as ‘commonplace, unoriginal or consist of general ideas’. The
inescapable conclusion was that the movie had copied the novel. In the
light of the numerous and significant similarities, the court was not
persuaded by the respondents’ contention that the similarities were only
similarities in ideas which was not protected by s 7(2A) of the Copyright
E Act 1987 (‘the CA 1987’). Neither could they be termed as commonplace
general ideas or mere coincidences (see paras 34–35).
(3) The trial judge erroneously found that the appellant had failed to show a
causal connection between the novel and the movie because ‘there was no
evidence on the sale of the novel, the number of copies that were sold or
F
whether the novel was still in the market, 14 years later’. Evidence of a
causal connection could be established directly or indirectly. In the
instant case, it was indirect in that the novel had been published and was
available to the public. The respondents could have had prior access to
G the novel. Even if it was no longer in the market, the novel could still
presumably have been available in libraries and bookstores. If the court
were to give a restrictive meaning to ‘causal connection’, as the trial judge
had done, it would leave a lot of original works unprotected, which was
clearly not intended by the CA 1987 (see paras 38–39).
H (4) In arriving at her decision, the trial judge had placed undue reliance on
irrelevant considerations, such as the 14-year gap between the
publication of the novel and the release of the movie and the fact that the
appellant had only commenced his suit five years after the movie was
I
released. Pursuant to s 18 of the CA 1987, the duration that was
protected by copyright was 50 years from the date of publication (see
para 37).
(5) In the light of the finding that the respondents had infringed the
appellant’s copyright in his novel, his allegation in his blog that his work
532 Malayan Law Journal [2019] 1 MLJ

had been copied by the respondents was protected by the defence of A

justification. Accordingly, the respondents’ counterclaim for defamation
was not sustainable (see para 40).

[Bahasa Malaysia summary

Perayu adalah penulis novel bertajuk ‘Aku Bohsia’ (‘novel tersebut’) yang B
diterbitkan pada 1995. Responden pertama adalah pelakon utama, penulis
skrip utama dan pengarah filem bertajuk ‘Bohsia: Jangan Pilih Jalan Hitam’
(‘filem tersebut’) yang dikeluarkan pada 2009. Filem tersebut telah diterbitkan
oleh responden kedua dan diedarkan oleh responden ketiga. Perayu telah
C
menyaman responden-responden kerana melanggar hak ciptanya dalam novel
tersebut selepas mendapati bahawa, antara lain, tema, plot, watak-watak dan
mesej, filem tersebut amat sama dengan novelnya. Dalam penyataan
tuntutannya, perayu telah menyatakan beberapa persamaan yang ketara antara
novelnya dan filem tersebut. Responden-responden menafikan dakwaan D
perayu dan mengatakan mereka tidak pernah membaca atau mendengar
tentang novel tersebut dan bahawa apa-apa persamaan antara filem tersebut
dan novel terebut hanyalah kebetulan semata-mata kerana hal perkara budak
perempuan ‘bohsia’ dan ‘mat rempit’ adalah perkara-perkara dalam
pengetahuan am tentang penduduk. Responden-responden telah menuntut E
balas terhadap perayu untuk ganti rugi kerana fitnah ke atas dua artikel yang
ditulisnya di blognya yang mengatakan bahawa responden-responden telah
meniru novelnya untuk filem tersebut. Mahkamah Tinggi telah menolak
tuntutan perayu, membenarkan tuntutan balas responden-responden dan
mengaward mereka ganti rugi RM100,000. Hakim perbicaraan mendapti F
bahawa apa-apa persamaan antara novel tersebut dan filem tersebut bukanlah
akibat meniru; bahawa isu-isu yang ditangani telah endemik dalam negara
sejak sebelum novel tersebut wujud dan adalah ‘commonplace, unoriginal or
consisted of general ideas’ yang mana novel tersebut tidak boleh menuntut
‘ownership’ eksklusif. Hakim perbicaraan mendapati bahawa perayu telah G
gagal untuk membuktikan kaitan kausal antara novel tersebut dan filem
tersebut untuk menunjukkan bahawa novel tersebut telah ditiru daripada
novel itu. Perayu telah merayu terhadap kedua-dua penolaka tuntutannya dan
membenarkan tuntutan balas.
H
Diputuskan, sebulat suara membenarkan rayuan, mengetepikan semua
perintah dibuat oleh Mahkamah Tinggi, memberikan relief-relief yang
dipohon oleh perayu dalam penyataan tuntutannya dan memerintahkan ganti
rugi am kena dbayar kepadanya ditaksir:
(1) Berdasarkan perbandingan teliti berhubung persamaan yang disebut I
dalam perenggan 10 penyataan tuntutan perayu, ia adalah jelas bahawa
terdapat persamaan ketara antara novel tersebut dan filem tersebut yang
tidak boleh dianggap sebagai kebetulan semata-mata (lihat
perenggan 33).
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 533

A (2) Tatkala fenomena ‘bohsia’ adalah penyakit sosial yang berleluasa pada
tahun 1990-an dan isu ‘mat rempit’ masih penyakit sosial sehingga kini,
persamaan antara novel tersebut dan filem tersebut terlalu banyak dan
bukan sahaja berkaitan tema am, plot, nama watak-watak dan tempat,
tetapi lebih penting lagi, ciri-ciri watak — malah kejadian dan hubungan
B spesifik dalam hidup watak-watak itu, yang tidak boleh secara kumulatif
diungkapkan sebagai ‘commonplace, unoriginal or consist of general
ideas’. Kesimpulan yang tidak dapat dielakkan adalah bahawa filem
tersebut telah meniru novel tersebut. Berdasarkan pelbagai dan
persamaan yang ketara, mahkamah tidak diyakini oleh hujah
C
responden-responden bahawa persamaan tersebut hanya merupakan
persamaan dalam idea yang tidak dilindungi oleh s 7(2A) Akta Hakcipta
1987 (‘AHC 1987’). Ia juga tidak boleh disebut sebagai idea am yang
lazim atau kebetulan semata-mata (lihat perenggan 34–35)
D (3) Hakim perbicaraan terkhilaf apabila mendapati bahawa perayu telah
gagal menunjukkan kaitan kausal antara novel tersebut dan filem
tersebut kerana ‘there was no evidence on the sale of the novel, the
number of copies that were sold or whether the novel was still in the
market, 14 years later’. Keterangan suatu kaitan kausa boleh dibuktikan
E secara langsung dan tidak langsung. Dalam kes ini, ia adalah tidak
langsung di mana novel tersebut telah diterbitkan dan boleh didapti oleh
orang ramai. Responden-responden mungkin telah mempunyai akses
terdahulu kepada novel tersebut. Jikapun ia tiada lagi di pasaran, novel
tersebut masih booleh dianggap boleh didapati dalam perpustakaan dan
F
kedai buku. Jika mahkamah memberikan maksud terhad kepada ‘causal
connection’, sepertimana yang dilakukan oleh hakim, ia akan
menyebabkan banyak kerja asal tidak dilindungi, yang mana adalah jelas
bukan diniatkan oleh AHC 1987 (lihat perenggan 38–39).
G (4) Dalam membuat keputusannya, hakim perbicaraan telah meletakkan
kebergantungan yang tidak wajar keatas pertimbangan yang tidak
relevan, seperti jurang 14 tahun antara peneribitan novel tersebut dan
tayangan filem tersebut dan fakta bahawa perayu telah hanya memulakan
guamannya lima tahun selepas filem tersebut ditayangkan. Menurut s 18
H
AHC 1987, tempoh yang dilindungi oleh hak cipta adalah 50 tahun dari
tarikh penerbitan (lihat perenggan 37).
(5) Berdasarkan dapatan bahawa responden-responden telah melanggar hak
cipta perayu dalam novelnya, dakwaannya dalam blognya bahawa
I kerjanya telah ditiru oleh responden-responden adalah diindungi oleh
pembelaan justifikasi. Sewajarnya tuntutan balas responden-responden
untuk fitnah tidak boleh dikekalkan (lihat perenggan 40).]
534 Malayan Law Journal [2019] 1 MLJ

Notes A
For cases on infringement, see 3(4) Mallal’s Digest (5th Ed, 2015)
paras 8174–8148.

Cases referred to
B
Designers Guild Ltd v Russel Williams (Textiles) Ltd (trading as Washington
DC) [2000] 1 All ER 700; [2000] 1 WLR 2416, HL (refd)
Kiwi Brand (M) Sdn Bhd v Multiview Enterprises Sdn Bhd [1998] 6 MLJ
38; [1998] 1 MLRH 116, HC (refd)
Megnaway Enterprise Sdn Bhd v Soon Lian Hock (sole proprietor of the firm C
Performance Audio & Car Accessories Enterprise) [2009] 3 MLJ 525; [2009] 2
MLRH 82, HC (refd)
Saleha Hussin lwn Ab Wahid Nasir & Yang Lain [2004] 2 MLRH 19, HC (refd)
The New Straits Times Press (M) Bhd & Anor v Admal Sdn Bhd [2013] 6 MLJ
405, CA (refd) D

Legislation referred to
Copyright Act 1987 ss 3, 7(2A), (3), 18, 36(1)
K Periasamy (Periasamy & Co) for the appellant. E
Aizul Rohan bin Anuar (Chambers of Saiful Dzulhelmi) for the respondent.

Badariah Sahamid JCA (delivering judgment of the court):

INTRODUCTION F

[1] This is an appeal against the decision of the learned High Court judge
who on 16 February 2016 dismissed the plaintiff ’s claim against the defendants
for copyright infringement, and allowed the defendant’s counterclaim against
the plaintiff for defamation. G

[2] For ease of reference parties will be referred to as they were in

proceedings before the High Court.

BACKGROUND FACTS H

[3] A summary of the background facts with suitable modifications is

extracted from the learned judge’s ‘grounds of judgment’.
I
[4] The plaintiff is the author of the novel titled, ‘Aku Bohsia’ (‘the novel’).
The novel was published in 1995 by Kreatif Akademik of Klang. The plaintiff
claims to be the copyright owner of the said novel which is protected by the
Copyright Act 1987 (‘the CA 1987’).
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 535

A [5] The first defendant is the lead actor, lead scriptwriter and director of the
movie, ‘Bohsia: Jangan Pilih Jalan Hitam’ (‘movie’). Apart from this movie, the
first defendant is also the scriptwriter and director of other Malay movies on
various themes.
B [6] The second defendant is the producer of the movie. He is also the father
of the first defendant.

[7] The third defendant is the distributor of the movie.

C
[8] PW1 and PW2 who are both children of the plaintiff gave evidence that
they had watched the movie around April 2009 and found the movie to be
similar to their father’s novel. They informed their father, the plaintiff, who
then watched the movie and found the movie to be similar with his novel.
D
[9] The plaintiff subsequently approached the defendants, who denied
copying the plaintiff ’s novel. The first defendant, the scriptwriter of the movie
claimed that he had never read the novel before directing the movie. The first
defendant also claimed that the movie is based on one of our social problems,
E the issue of ‘bohsia’.

THE PLAINTIFF’S CLAIM

Copyright infringement
F
[10] The plaintiff filed this suit in November 2014, and claimed that the
movie, ‘Bohsia: Jangan Pilih Jalan Hitam’ had lifted, utilised, copied and
plagiarised the contents, theme, plot, characters and message in his novel, ‘Aku
Bohsia’ to create, develop, produce, present and distribute the movie, ‘Bohsia:
G Jangan Pilih Jalan Hitam’.

[11] The plaintiff claims that the defendants’ actions abovementioned were
without the plaintiff ’s consent, knowledge, approval and permission and had
thus infringed and violated the plaintiff ’s copyright.
H
[12] The details of the alleged infringements are pleaded in the plaintiff ’s
statement of claim dated 25 November 2014 in para 10. A summary of the
alleged infringements (English translation) are as follows:
I (a) theme
Both the novel and the movie have the same or similar theme of young
girls referred to as ‘bohsia’, who are sexual victims and their involvement
with ‘Mat rempit’, motorcyclists who are often involved with illegal
racing;
536 Malayan Law Journal [2019] 1 MLJ

(b) plot A
Both the novel and the movie contain the same or similar plots of two
main characters (‘bohsia girls’) who became ‘bohsia’ after being raped by
their own fathers and as a result of being influenced by their peers in a
negative way;
B
(c) message
(i) in both the novel and movie, the same or similar message conveyed was
to urge society to sympathise with these ‘bohsia’ girls, to urge society to
overcome this social ill as well as to find means to rehabilitate both the
C
‘bohsia’ girls as well as the ‘Mat rempit’. Attention is also drawn to
certain parties who take advantage of them, in particular the pimps
(‘bapa/ibu ayam’) who would prostitute these ‘bohsia’ girls; and
(ii) both the novel and the movie also focus on the vices of drug abuse,
gambling, alcoholism, illegal racing and the effects of the D
abovementioned vices;
(d) characters
(i) in the novel, the two main ‘bohsia’ characters are called ‘Anne Natasha’
and ‘Syima’. The two ‘Mat rempit’ characters who frequently race E
illegally are called ‘Jeff ’ and ‘Burt’. The other main character is a lady
pimp who prostitutes the ‘bohsia’ girls. The character of the father is that
of an alcoholic who raped his own daughter;
(ii) in the movie, the two main ‘bohsia’ girls are called ‘Amy’ and ‘Tasha’, F
while the two ‘Mat rempit ‘ characters are called ‘Mus’ and ‘Acai’. The
movie also features the character of a male pimp. The character of the
father is similarly that of an alcoholic who had raped his own daughter;
and
G
(iii) both the novel as well as the movie feature characters with the common
traits of being quarrelsome as well as hot tempered (the character of Jeff
in the novel and the character of Acai in the movie)
(e) significant similarities:
H
(i) in the novel the father who is an alcoholic and a gambler rapes his own
daughter and is irresponsible. Similarly, in the movie, the character of
the father rapes his own daughter. He is similarly an alcoholic, a gambler
and is irresponsible;
(ii) sexual scenes of the main ‘bohsia’ character. In the novel, Anne Natasha I
who was drunk only recovered consciousness at 4am to discover that all
the ‘Mat rempit’ had had sexual relations with her. Whereas in the
movie, Tasha who was a drug addict had sexual relations with all the
‘Mat rempit’ at a rented house;
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 537

A (iii) in the novel, Anne Natasha attends a ‘tea dance’ with the intention of
attempting to drink alcohol. While in the movie, Tasha goes to a disco
with the same intention of attempting to drink alcohol;
(iv) in the novel, Anne Natasha who does not go to school returns home late
B is scolded and slapped by her parents. Anne Natasha herself had seen her
own mother come out of a hotel in Bukit Bintang with a man who was
not her father. In the movie, Tasha is evicted from her home by her own
mother who threw out her belongings, yet her own mother brings home
other men; and
C (v) in the novel, the popular meeting place for the ‘bohsia’ girls and their
‘Mat rempit’ friends is around the Bukit Bintang area. Other locations
include Dayabumi and the area behind the Federal Court building.
Similarly, in the movie the ‘Mat rempit’ group had got into a fight in
front of Lot 10 in the Bukit Bintang area. The ‘Mat rempit’ and ‘bohsia’
D meeting grounds are the areas in the vicinity of the Federal Court
building opposite Dataran Merdeka.

THE DEFENCE

E [13] The defence of the defendants may be summarised as follows:

(a) the defendants had never read or purchased or heard of or been
informed of the plaintiff ’s novel;
(b) there are significant dissimilarities between the novel and the movie.
F (refer to para 5 at pp 3–20 of the defence);
(c) any similarities between the novel and the movie are only coincidental
because they are premised on common social problems which is well
known through the mass media such as newspapers, television dramas as
G well as films; and
(d) the similarities between the novel and the movie are similarities of ideas
and not protected under s 7(2A) of the CA 1987.

THE DEFENDANTS’ COUNTERCLAIM

H
Defamation

[14] The defendants had mounted a counterclaim that the plaintiff ’s blog on
the internet at http://ikanlepu.blodspot.com/2014archive.html under the
I heading ‘Elias Hj Idris, Mendepani Masa Depan’ dated 7 November 2014 with
reference to ‘Pengarah Muda Filem Bakal disaman’ is defamatory. In addition,
another of the plaintiff ’s blog on the internet at
http://ikanlepu.blodspot.com/2014archive.html under the heading ‘Elias
Hj Idris, Mendepani Masa Depan’, dated 16 November 2014, with reference
538 Malayan Law Journal [2019] 1 MLJ

to ‘AKU BOHSIA’, Sebuah Karya Sastera (novel) is also defamatory. A

Agreed Issues before the High Court

[15] The issues in the plaintiff ’s claim and the defendants’ counterclaim may
be summarised as follows: B

(a) whether the defendants have used, copied, lifted and plagiarised the
contents of the plaintiff ’s novel entitled, ‘AKU BOHSIA’, to create,
develop, produce, present and distribute the film, ‘BOHSIA: JANGAN
PILIH JALAN HITAM’; C
(b) whether the defendants’ said action as referred to above had infringed
and violated the plaintiff ’s copyright to his said novel and had caused
loss and damage to the plaintiff? and
(c) whether the plaintiff ’s blogs on the internet, details as abovementioned, D
are defamatory?

THE FINDINGS AND DECISION OF THE HIGH COURT

[16] The learned High Court judge had dismissed the plaintiff ’s claim on E
copyright infringement and allowed the defendants’ counterclaim for
defamation. The grounds of decision of the learned judge may be summarised
as follows.

Copyright infringement F

[17] The learned judge made a finding that the novel of the plaintiff was an
original piece of work and that the plaintiff is the owner of the copyright in the
novel, ‘AKU BOHSIA’.
G
[18] However, the learned judge found that the similarities alleged between
the plaintiff ’s novel and the defendants’ movie was not the result of copying or
substantial reproduction of the plaintiff ’s novel, ‘… because they are
commonplace, unoriginal, or consists of general ideas’ (Designers Guild Ltd v H
Russel Williams (Textiles) Ltd (trading as Washington DC) [2000] 1 All ER
700; [2000] 1 WLR 2416 at p 2425; The New Straits Times Press (M) Bhd &
Anor v Admal Sdn Bhd [2013] 6 MLJ 405).

[19] In the learned judge’s view, both the novel and the movie are about the I
life of a ‘bohsia’. The issues of ‘bohsia’ girls, and the surrounding issues such as
‘Mat rempit’, drug abuse, alcoholism, gambling and illegal racing were social
problems that were prevalent before 1995 when the novel was first published
and persisted after the screening of the movie in 2008, and until today. Thus
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 539

A these were elements which are already in the public domain and cannot be
considered as exclusive to the plaintiff ’s novel. At para 43 of her grounds of
judgment, the learned judge had stated thus:
‘Bohsia’ and its related social problems and common features are already part of our
society before the publication of the plaintiff ’s novel in 1995 and persisted until
B today. All these elements associated with ‘bohsia’, which are part of our social
problems, are therefore information that is both commonplace and general ideas in
our society that cannot form part of the comparison between the novel and the
movie. The ‘bohsia’ and ‘mat rempit’ issues are general issues which are already in
public domain that cannot be said to be exclusive only to the plaintiff ’s novel. The
C ‘bohsia’ issue is already a part of our society that it was included in the national
dictionary.

[20] The learned judge then proceeded to exclude the general and
commonplace elements in society when making comparison between the novel
D
and the movie. What was left for comparison was, in the learned judge’s view
insufficient to support a copyright infringement. At para 46 of the learned
judge’s grounds of judgment she had stated as follows:
As such, and after taking out the ideas and elements associated with ‘bohsia’, what
E are left for comparison are the similarities in the scene of the rape of the daughter by
her father, the relationship between the daughter and her mother, the names of the
character, and the places of gathering of the ‘bohsia’ and the ‘mat rempit’
(similarities in item 1/a, 3, 5, 6 and 15). However, I am of the considered opinion
that by themselves, they cannot be said to be substantial similarities that goes to the
root of the novel and the movie. The root of both the novel and the movie are the
F social issues surrounding the ‘bohsia’ and to a lesser extent, the ‘mat rempit’.

[21] The learned judge also made a finding that there is no causal connection
between the novel and the movie to establish that the movie was copied from
G the novel. In para 49 and 50 of the learned judge’s grounds of judgment, she
stated as follows:
[49] From his witness statement (WSPW5), the plaintiff did not explain the causal
connection between the novel and the movie. On this issue I agree with the
defendant that the plaintiff has failed to establish the causal connection. The novel
H was published in 1995, but the movie was released only in 2009, about 14 years
later. Yet, the plaintiff only took action in 2014, about five years later. Added to that,
there was no evidence on the sale of the novel, the number of copies that was sold or
whether the said novel is still in the market, 14 years later.
[50] With regards to the plaintiff ’s reliance of the case of Saleha, (Saleha Hussin lwn
I Ab Wahid Nasir & Yang Lain [2004] 2 CLJ 2004) I am of the considered opinion
that our factual matrix is different, because in Saleha’s case there is a nexus between
plaintiff, who is the script writer and had given the script to the defendant. Having
access to the plaintiff ’s script, the defendant has produced the production bearing
substantive similarities with the plaintiff ’s script. On the facts in that case, the court
has made a finding of fact on substantive similarities.
540 Malayan Law Journal [2019] 1 MLJ

Defamation A

[22] In respect of the two articles, published on the plainitiff ’s blog, the
learned judge found that the defendants had established their counterclaim
against the plaintiff in defamation. At para 58 of her grounds of judgment she
stated thus: B

… I am of the considered opinion that the words are defamatory as they claim that
the movie has copied about 80% or 85% of the novel. The articles impute that the
defendants lack in integrity and/or dishonourable conduct by copying the novel
into their film. This would expose the defendants to ridicule and lower the C
defendants in the estimation of society.

[23] On the premise that the defendants are well known members of the
Malay film industry, and that the allegations on copying affects the defendants’
professional reputation and honour, the learned judge awarded the defendants D
damages in the sum of RM100,000.

The plaintiff/appellant’s grounds of appeal

[24] The plaintiff ’s grounds of appeal may be summarised as follows: E

(a) the learned judge had erred in her finding that the social problem of
‘bohsia’ was a prevalent phenomenon in the 1990’s but not of today;
(b) the learned judge had failed to appreciate that there were glaring
similarities between the novel and the defendants’ movie in respect of F
the theme, character, plot and underlying message. Thus the movie
‘Bohsia: Jangan Pilih Jalan Hitam’ was not an original work but a copy
of the plaintiff ’s novel, ‘Aku-Bohsia’;
(c) the learned judge had erred in fact and law in her finding there was no G
breach of the plaintiff ’s copyright when the plaintiff had demonstrated
that there was substantial copying (80%) of the plaintiff ’s novel; and
(d) the learned judge had erred in her finding that defamation had been
proved against the plaintiff. H
OUR DECISION

[25] After careful consideration of learned counsels’ oral and written

submissions and a perusal of the appeal records, we were of the unanimous I
opinion that there were merits in this appeal that warrant appellate
intervention. Accordingly, we allowed the appeal with costs of RM40,000. We
set aside the orders of the learned judge in respect of both causes of action ie
infringement of copyright and defamation. We give our reasons below.
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 541

A [26] It is not disputed that the plaintiff is the author of the novel, ‘AKU
BOHSIA: JANGAN PILIH JALAN HITAM’. It is also not disputed that the
plaintiff ’s novel is a literary work within the interpretation of s 3 of the CA
1987, which includes novels, and is eligible for copyright protection pursuant
to s 7(3) of the CA 1987 which reads as follows:
B
A literary, musical or artistic work shall not be eligible for copyright unless:
(a) sufficient effort has been expended to make the work original in character,
and
(b) the work has been written down, recorded or otherwise reduced to
C material form.

[27] Thus, what is protected by copyright law is the original work of the
author. In the case of Kiwi Brand (M) Sdn Bhd v Multiview Enterprises Sdn
D Bhd [1998] 6 MLJ 38 at p 46; [1998] 1 MLRH 116 at p 120, Abdul Malik
Ishak J (as he then was) had occasion to consider what is meant by ‘original’ in
s 7(3) of the CA 1987:
The word ‘original’ that appears in s 7(3)(a) of the Copyright Act 1987 does not
mean that the work must be the expression of original or inventive thought. I am of
E the considered view that the originality which is required relates to the expression of
the thought; it does not require that the expression must be in an original or even
novel form. The work must not be copied from another work. It should originate
from the author.

F [28] In this respect we agree with the learned judge’s findings that the
plaintiff ’s novel was ‘original’ in that the plaintiff was the author of the novel
and not copied from another work, and that the plaintiff is the owner of the
copyright in the said novel.

G [29] The plaintiff ’s claim against the defendants for copyright infringement
is premised on s 36(1) of the CA 1987, which provides as follows:
36 Infringements.
(1) Copyright is infringed by any person who does, or causes any other person to do,
H without the licence of the owner of the copyright, an act the doing of which is
controlled by copyright under this Act.

[30] In the House of Lords case of Designers Guild Ltd v Russel Williams
(Textiles) Ltd (trading as Washington DC) [2000] 1 WLR 2416; [2000] 1 All ER
I 700 at p 708, Lord Millet had succinctly summarised the essential elements in
an action for copyright infringement in the following words (the alleged
infringement was in respect of the alleged copying of a fabric design):
The first step in an action for infringement of artistic copyright is to identify those
features of the defendant’s design which the plaintiff alleges have been copied from
542 Malayan Law Journal [2019] 1 MLJ

the copyright work. The court undertakes a visual comparison of the two designs, A
noting the similarities and the differences. The purpose of the examination is not to
see whether the overall appearance of the two designs is similar, but to judge
whether the particular similarities relied on are sufficiently close, numerous or
extensive to be more likely to be the result of copying than of coincidence. It is at
this stage that similarities may be disregarded because they are commonplace, B
unoriginal or consists of general ideas. If the plaintiff demonstrates sufficient
similarity, not in the works as a whole but in the features he alleges have been copied,
and establishes that the defendant had prior access to the copyright work, the
burden passes to the defendant to satisfy the judge that, despite the similarities, they
did not result from copying.
C

[31] The same elements were also referred to in the Malaysian case of
Megnaway Enterprise Sdn Bhd v Soon Lian Hock (sole proprietor of the firm
Performance Audio & Car Accessories Enterprise) [2009] 3 MLJ 525 at
p 536; [2009] 2 MLRH 82 at p 88. Justice Low Hop Bing had stated the D
elements which constitute copyright infringement pursuant to s 36(1) of the
CA 1987 in the following way:
The essential elements constituting copyright infringement have been set out by Sir
Rymond Evershed MR in Purefoy Engineering Co Ltd And Another v Sykes Boxall &
Co Ltd And Others [1955] 72 RPC 89. Prof Dr Khaw Lake Tee adopted these E
elements in Copyright Law in Malaysia (1994) at pp 87 and 88 as follows:
For purposes of direct infringement, it must be established that:
(a) there is sufficient objective similarity between the original work or a
substantial part thereof, and the infringing copy; F
(b) there is a causal connection between the original work and the infringing
copy, that is, the infringing copy must have been copied from the original
work, whether directly or indirectly; and
(c) what has been infringed must constitute a substantial part of the original G
work. (Emphasis added.)

[32] The learned judge had declined to consider the alleged similarities in
the plaintiff ’s evidence (listed as items (2), (7) and (10) (pp 16–19 in the
grounds of judgment) as the same had not been pleaded in the statement of H
claim — see para 26. She then proceeded to consider the other alleged
similarities in the statement of claim but disregarded the similarities as copying
on the grounds that ‘… they are commonplace, unoriginal, or consist of general
ideas’.
I
[33] We respectfully disagreed with the abovementioned findings of the
learned judge. On a careful comparison of the similarities enumerated in
para 10 the plaintiff ’s statement of claim (translated in para 12 of this
judgment), it is apparent that there is a substantial similarity between the
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 543

A plaintiff ’s novel and the movie that cannot be written off as merely
coincidental. This shows in our considered opinion a clear lack of judicial
appreciation by the learned judge.

[34] While the ‘bohsia’ phenomenon is a social ill that was prevalent in the
B 1990’s and the issue of ‘mat rempit’ remains a social issue till today, the
similarities between the novel and the movie are so numerous and relate not
just to the general theme, plot, names of characters and places, but more
importantly, character traits — even specific events and relationships in the
lives of the characters, that cumulatively cannot be termed as ‘commonplace,
C unoriginal or consist of general ideas’. The inescapable conclusion is that the
movie had copied the novel. Some of these similarities were referred to in the
statement of claim, in particular the following:
5. Significant similarities
D (i) In the novel the father who is an alcoholic and a gambler rapes his own
daughter and is irresponsible. Similarly, in the movie, the character of the
father rapes his own daughter. He is similarly an alcoholic, a gambler and
is irresponsible.
(ii) Sexual scenes of the main ‘bohsia’ character. In the novel, Anne Natasha
E who was drunk only recovered consciousness at 4am to discover that all
the ‘Mat rempit’ had had sexual relations with her. Whereas in the movie,
Tasha who was a drug addict had sexual relations with all the ‘Mat rempit’
at a rented house.
(iii) In the novel, Anne Natasha attends a ‘tea dance’ with the intention of
F attempting to drink alcohol. While in the movie, Tasha goes to a disco
with the same intention of attempting to drink alcohol.
(iv) In the novel, Anne Natasha who does not go to school and returns home
late is scolded and slapped by her parents. Anne Natasha herself had seen
her own mother come out of a hotel in Bukit Bintang with a man who was
G not her father. In the movie, Tasha is evicted from her home by her own
mother who threw out her belongings, yet her own mother brings home
other men.
(v) In the novel, the popular meeting place for the ‘bohsia’ girls and their ‘Mat
rempit’ friends is around the Bukit Bintang area. Other locations include
H Dayabumi and the area behind the Federal Court building. Similarly, in
the movie the ‘Mat rempit ‘ group had got into a fight in front of Lot 10
in the Bukit Bintang area. The ‘Mat rempit’ and ‘bohsia’ meeting grounds
are the areas in the vicinity of the Federal Court building opposite Dataran
Merdeka.
I
[35] In the light of the abovementioned numerous and significant
similarities between the novel and the movie, we are not persuaded by the
defence of the defendants as submitted before us that the similarities pointed
out are similarities in ideas, which are not protected by s 7(2A) of the CA 1987.
544 Malayan Law Journal [2019] 1 MLJ

Neither can they be termed as commonplace general ideas or mere A

coincidences.

[36] In the case of Saleha Hussin lwn Ab Wahid Nasir & Yang Lain [2004] 2
MLRH 19, the original work was a short story that had been published in a
Malay daily. The copied work was a television drama. Justice Abdul Hamid B
Mohamed, (as he then was) had examined the two works and found (at p 38):
… Adalah jelas bahawa terdapat persamaan substantif antara kedua-dua ‘karya’ itu.
Persamaan yang sebegitu banyak dan penting tidak boleh berlaku secara kebetulan.
Ia semestinya disebabkan oleh perbuatan meniru.
C

[37] We are also of the considered opinion that in arriving at her decision,
the learned judge had placed undue reliance on irrelevant considerations ie the
14 year gap between the publication of the novel in 1995 and the release of the
movie in 2009 and that the plaintiff ’s suit against the defendants was only D
commenced five years later in 2014. Pursuant to s 18 of the CA 1987, the
duration that is protected by copyright is fifty years from the date of
publication.
Section 18 provides as follows:
E
18 Duration of copyright in published editions
Copyright which subsists in a published edition under this Act shall continue to
subsist until the expiry of a period of fifty years computed from the beginning of the
calendar year next following the year in which the edition was first published.
F
[38] In addition, the learned judge had, erroneously in our opinion made a
finding that the plaintiff had failed to demonstrate a causal connection between
the original work and the infringing work because, ‘there was no evidence on
the sale of the novel, the number of copies that was sold or whether the said
novel is still in the market, 14 years later’. G

[39] It is worthy of note that evidence of a causal connection can be

established directly or indirectly. It is true that in Saleha’s case the causal
connection was direct in that the original script had been handed to the
defendant. In this case, the causal connection is indirect in that the original H
work had been published and was therefore available to the public. Thus the
defendant would have had prior access to the novel. Even if the novel was no
longer in the market, it would still presumably be available in libraries and
bookstores. If we were to give a restrictive meaning to ‘causal connection’ as the
learned judge did, it would leave a lot of original works unprotected, which is I
clearly not intended by the CA 1987.

[40] In respect of the defendants’ counterclaim for defamation: in the light

of our finding that the defendants had infringed the plaintiff ’s copyright to his
 Elias bin Idris v Mohd Syamsul bin Md Yusof & Ors
[2019] 1 MLJ (Badariah Sahamid JCA) 545

A novel, the plaintiff ’s allegation published in his blogs that his work had been
copied by the defendant is protected by the defence of justification.
Accordingly, the defendants’ counterclaim of defamation is not sustainable. We
therefore dismissed the order of the learned judge which found the content of
the plaintiff ’s blogs to be defamatory.
B
[41] In conclusion, we allowed the plaintiff ’s appeal as well as the appeal
against the finding of defamation. We set aside the orders of the learned judge
in respect of both the copyright action and defamation. We also grant the
plaintiff ’s prayers 1, 2, 3, 4 and 6 in the statement of claim (pp 3–4 of the
C appeal records, Part A Vol 1). We also ordered that general damages be assessed
by the learned judge. We awarded costs of RM40,000 here and below subject
to the payment of allocator. Deposit to be refunded to the appellant.

Order accordingly.
D
Reported by Ashok Kumar