Copyright In Malaysia

6 April, 2016

 

Copyright in Malaysia is governed by the Copyright Act (1987) and the Berne Convention (to which Malaysia acceded in 1990). As a member of the Berne Convention, Malaysia recognises a wide variety of artistic works which are copyrightable, including literary, artistic, and musical works, sound recordings and films, drawings, computer codes, and more. All artistic works receive protection for the form of the work’s expression—meaning, for example, that your code is protected, but you cannot prevent someone from writing different code which accomplishes the same thing by using copyright.

 

In today’s article we explore the Malaysian copyright system, with a focus on how European SME’s can best exploit it to protect their materials.

 

For a work to be eligible for protection in Malaysia, the author must come from, the work must be first published in, or the work must be made in Malaysia or any other country which is a party to the Berne Convention. 

 

Criteria for and Periods of Protection

 

Copyright grants moral and economic rights to the author of the work, unless that author was commissioned or employed by another party (in which case the commissioner or employer gains copyright). Despite this, it can be difficult to prove copyright in court. As such, it is advised that a work and its owner be documented. This can be accomplished according to Section 42 of the Copyright Act, which allows for a person to create an affidavit or statutory declaration stating that he or she is the true owner of the copyright. This statement can then be used as evidence in court.

 

Furthermore, as of 2012, Malaysia has implemented rules which allow for copyright owners and stakeholders to notify Malaysia’s Copyright Controller of their claims and to give MyIPO a copy of the copyrighted work. A representative may also make such a notification on behalf of a copyright holder if the holder is not a resident of Malaysia. These notifications require the following information:

 

• Details of the owner and author of the copyright, as well as the applicant’s status as representative (if the application is made on behalf of another)
• A (clear and durable) copy of the copyrighted work and a title of the work (translated into Bahasa Malaysia or English if it is not in one of these languages)
• Information on the date and place of publication of the work
• Information on payment of the required fee

 

Copyright registrations are not subject to substantive examination, so the application itself is taken as proof that the facts within the application are true. After examination, an applicant may ask for a certificate which can be presented to Malaysian courts as evidence.

 

As per the Berne Convention, in Malaysia, copyrights extend protection for the life of the author and an additional 50 years thereafter. 

 

Enforcement

 

Copyright grants two types of rights in Malaysia. Economic rights guarantee that the owner of a copyright is the only one who can engage in or authorise reproduction, performance, distribution, sale, stocking, or other commercial exploitation of the work in Malaysia. On the other hand, moral rights give the author of the work the right to be identified as the author and to object to any use or alteration of the work which would harm his or her reputation or integrity. These moral rights remain with the author of the work regardless of who possesses the economic rights to the work (such as by transfer of rights). 

 

Before taking civil or criminal actions, SMEs should strongly consider mediation. Firms with limited budget options and a need to quickly halt infringement can use mediation as a quick and cost-efficient means of halting infringement.

 

Beyond mediation, the two main avenues of enforcement in Malaysia are the Enforcement Division of the Ministry of Domestic Trade, Cooperatives, and Consumerism (for criminal enforcement) and IP court litigation. Before any enforcement action, you should always gather proof of your ownership of the IP in question and proof of infringement. 

 

In criminal enforcement with the Enforcement Division (ED), counterfeiting and piracy cases can quickly yield goods seizures, injunctions, and prosecutions. To prepare for such actions, you should provide proof of infringement and a letter of complaint.

 

After raids or product seizures, SMEs should assist the ED by providing identification and analysis of seized goods to prove infringement. Prison sentences range from up to five years for minor offenses to up to ten years for egregious offenses.

 

In litigation through IP courts, IP owners can bring cases before specialised Malaysian IP courts. These courts are empowered to issue injunctions which immediately halt infringement and to assign unlimited damages to be paid to the rights owners. Nine months is the proscribed maximum waiting time for these cases between filing and their day in court, offering a reasonable expectation of timely resolution. There are six “High Courts” (in Kuala Lumpur, Johor, Perak, Selangor, Sabah, and Sarawak) which focus on civil cases (as the damages are often difficult to quantify), as well as 15 “Sessions Courts” spread among the Malaysian states which focus on criminal cases and which have unlimited power to issue fines.