Is the law on Intellectual property law is effective to

combat fight unethical practices of intellectual property in

Malaysia?
Introduction of Intellectual Property (IP)

Intellectual Property (IP) is the idea that its subject is the product of the mind or the mental
power that could be in the form of Patents, Trademarks, Industrial Designs and Copyright. IP,
protected through law, like any other form of property can be a material of trade, that is, it can be
owned, bequeathed, sold or bought. The major features that differentiate it from other forms are
their intangibility and non-exhaustion by using up and IP is the basis of knowledge-based
economy. It pervades all parts of economy and is progressively more becoming significant for
ensuring competitiveness of the business. By the way, Intellectual Property is the intangible but
legally recognized right to property in the products of ones intellectual. Besides that, Intellectual
Property rights permit the inventor of certain ideas, inventions, and expressions to exclude others
from using his ideas, inventions, and expressions without permission.
The recognition of intellectual property rights in Malaysia started as early as the 1800s during
the Straits Settlement days. As the years go by, laws to protect intellectual property rights were
expanded. Malaysian intellectual property laws are fairly similar with the laws of other
Commonwealth countries and more or less in accordance with international practice. Intellectual
property protection in Malaysia comprises of patents, trademarks, industrial designs, copyrights,
geographical indications and layout designs of integrated circuits. Malaysia is a member of the
World Intellectual Property Organization (WIPO) and a signatory to the Paris Convention and
Berne Convention which govern these intellectual property rights (MITI, 2014).
In addition, Malaysia is also a signatory to the Agreement on Trade Related Aspects of
Intellectual Property Rights (TRIPS) signed under the auspices of the World Trade Organization
(WTO). Therefore, Malaysia's intellectual property laws are in conformance with international
standards and provide adequate protection to both local and foreign investors in commercial
sectors.

Components of Intellectual Property (IP)

A. Copyright
Copyright exists in original works. If the work is the result of the authors own efforts
and is not copied from someone else, it will be original as far as the Act is concerned The
Copyright Act does not provide protection to unpublished works not made two or more
authors may come up with the same idea at the same time (Row,1872). As long as none
of them copied form any of the others, each author has copyright in their own work and
no one infringes the copyright of others. There are few segments in copyright such as
literary works, musical works, artistic works, films, sound recording and broadcast.
The Copyright Act 1987 provides comprehensive protection for copyrightable works. The
Act outlines the nature of works eligible for copyright (which includes computer
programs), the scope of protection, and the manner in which the protection is accorded.
There is no registration of copyright works. Copyright protection in literary, musical or
artistic works is for the duration of the life of the author and 50 years after his death. In
sound recordings, broadcasts and films, copyright protection is for 50 years after the
works are first published or made. The Act also provides protection for the performer's
rights in a live performance which shall continue to subsist for fifty years from the
beginning of the calendar year following the year in which the live performance was
given (Ministry of International Trade and Industry, 2012). A unique feature of the Act is
the inclusion of provisions for its enforcement. The amendment of the Copyright Act
1987, which was enforced on 1 October 2003 confers power of arrest (including arrest
without warrant) to enforcement officers of the Ministry of Domestic Trade, Cooperative
and Consumer Risn (MTTCC).This special team of officers of the MDTCA is appointed
to enforce the Act and is empowered to enter premises suspected of having infringing
copies and to search and seize infringing copies and contrivances.
A newspaper reporter interviewed a well-known jockey regarding his racing experiences
and published articles in his newspaper with the jockeys consent. A few years later, the
journalist wanted to publish an abridged version of the articles in another publication.
The jockey objected and sought an injunction on the basis that he owned the story. The
injunction was not granted as the copyright was in the finished work and not the idea

itself. A person may have a brilliant idea for a story or for a picture, and one that appears
to him to be original. However, if that idea is told to an author or an artist who converted
the idea into finished work. The owner of the idea has no rights in the finished works.
(Bansal, 2001)
B. Design
An industrial design is the ornamental or aesthetic aspect of an article. The design may
consist of three-dimensional features such as the shape and configuration of an article, or
two-dimensional features, such as pattern and ornamentation. The design features must be
applied to an article by any industrial process or means of which the features in the
finished article appeal to eye (Sinduhura, 2012).
The Layout Designs of Integrated Circuit Act 2000 provides for the protection of layout
designs of integrated circuits based on originality, creator's own invention and the fact
that the creation is freely created. There is no registration for the layout design of an
integrated circuit. The duration of protection is 10 years from the date of its commercial
exploitation or 15 years from the date of creation if not commercially exploited. The Act
also allows for action to be taken by the owner if such a right recognized under the Act
has been infringed. The right can also be transferred either partly or wholly by way of
assignment, license, wills or through the enforcement of law. The Act is implemented in
compliance with the TRIPS Agreement to provide a guarantee to investors in Malaysia's
electronics industry and to ensure the growth of technology in the country (Stapleton,
2003)
In term of case Anton Piller KG v Manufacturing Processes Ltd (1976) Reference Case of
Infringement Facts The plaintiff was a German Company that manufactured computer
equipment. The defendant was the plaintiffs agent for the distribution of its products in
the United Kingdom. The plaintiff claimed that the defendant was supplying confidential
information about the plaintiffs products to the plaintiffs rivals in Germany. Held The
court could order the defendant to permit the plaintiff to enter the defendants premises
and remove relevant material where the plaintiff had a very strong prima facie case and
there was a likelihood of serious damage to it and there was clear evidence the defendant
possessed material that might be destroyed or disposed of.
C. Patent

Patents are grants given to owners by the government which give the owner an exclusive
right over the invention that they have created. Invention can cover product or processes.
The protection also gives the owner the exclusive right to stop others from
manufacturing, using and/or selling the owners invention in Malaysia without the
owners consent or permission (Crown, 2013).
The Patents Act 1983 and the Patents Regulations 1986 govern patent protection in
Malaysia. An applicant may file a patent application directly if he/she is domicile or
resident in Malaysia. A foreign application can only be filed through a registered patent
agent in Malaysia acting on behalf of the applicant. Similar to legislations in other
countries, an invention is patentable if it is new, involves an inventive step and is
industrially applicable. In accordance with TRIPS, the Patents Act stipulates a protection
period of 20 years from the date of filing of an application (Luntz, 2012). Under the Act,
the utility innovation certificate provides for an initial duration of ten years protection
from the date of filing of the application and renewable for further two consecutive terms
of five years each subject to use. The owner of a patent has the right to exploit the
patented invention, to assign or transmit the patent, and to conclude a licensed contract.
In accordance with TRIPS, under the scope of compulsory license, the Act allows for
importation of patented products that are already in the other countries' market (parallel
import).The Government can prohibit commercial exploitation of patents for reasons of
public order or morality. The Act was amended to include provision for Patent
Cooperation Treaty (PCT) and to allow importation under the scope of compulsory
license. Malaysia has acceded to the PCT in the year 2006 and effective from 16 August
2006.
In the view of case Kevin David Mitnick is a controversial computer cracker and
convicted criminal in the Malaysia was convicted in the late 1990s of illegally gaining
access to computer networks and stealing intellectual property in term of Patent Act.
D. Trademark
A trade mark is an important asset for all businesses. It consists of a device, brand,
heading, label, ticket, name, signature, word, letter, numeral or any combination thereof.

It provides their owners with the legal right to prevent others from using an identical or
confusingly similar mark (Law Mart, 2010)
Trade mark protection is governed by the Trade Marks Act 1976 and the Trade Marks
Regulations 1997. The Act provides protection for registered trademarks and service
marks in Malaysia. Once registered, no person or enterprise other than its proprietor or
authorized users may use them. Infringement action can be initiated against abusers. The
period of protection is ten years, renewable for a period of every ten years thereafter. The
proprietor of the trade mark or service mark has the right to deal or assign as well as to
license its use. In accordance with TRIPS, Malaysia prohibits the registration of wellknown trade marks by unauthorized persons and provides for border measures to prohibit
counterfeit trade marks from being imported into Malaysia. Malaysia accedes to the Nice
and Vienna Agreement on 28 June 2007 which was enforced on 28 September 2007. Nice
Agreement is concerning the International Classification of Goods and Services for the
purpose of the registration of marks whereas the Vienna Agreement establishes a
classification for marks, which consist of or contain figurative elements. Both agreements
are significant to facilitate trade mark registration (Harris D, 2007)

Conclusion
All businesses that wish to invest or trade in Malaysia should consider registered their rights in
Malaysia. As Intellectual Property rights are generally territorial, one should take all steps to
secure their rights before investing or trading. For example, if a foreign entity discovers that a
local company is trading in the same trade mark as the former and earlier than the former in
Malaysia, the former should consider using another trade mark or purchase the said trades mark
from the latter provided that there is no element of misappropriation. In above discussion, the
Intellectual Property law well determined on the on combating the unethical practice at Malaysia
and Ministry of International Trade and Industry (MITI) are organizing programmers to create

the awareness of IP among Malaysian traders. As whole assumption, Corporate Social

Responsibility with legal responsibility and moral responsibility to apply the most basic
standards and norms in business, of which the most important thing is to respect intellectual
property rights to give the consumer the trust to buy products and should prevent infringement
on intellectual property rights copyrights, trademarks, patent, industrial designs nevertheless at
Malaysia or countries around the world

Reference
Bansal (2001),The Law of Trademarks In India, Commercial Law Publishers (I)Pvt Ltd
Delhi, 5th Edition Vol 4.
Crown (2013) License, Mortgage, Change Ownership and Market Your Trade Mark,Available
at: https://www.gov.uk/license-mortgage-change-ownership-and-market-your-trade-mark(Accessed: 10
NOV 2014).

Harris, D (2007), Can the Law of Torts Fulfil its Aims? (1990) 14 NZUL Rev 113 Ipp,
David et al, Review of the Law of Negligence Report (2002)
MITI (2014), Ministry of International Trade and Industry, Available at:
http://www.miti.gov.my/cms/index.jsp (Accessed: 10 NOV 2014)

Law Mart, (2010) COPYRIGHT vs. TRADEMARK vs. PATENT, Available at:
http://www.lawmart.com/forms/difference.htm (Accessed: 10 NOV 2014).
Luntz, Harold and Hambly, David, Torts: Cases and Commentary (5th ed, 2002)

Row S (1872), Law Relating to the Contract Act, 1872 and Tenders,10th Edition, Vol
3 (Delhi Law House)
Sinduhura (2012) Agreements Under Intellectual Property, Available at:
http://nopr.niscair.res.in/bitstream/123456789/6705/1/JIPR%2014(6)%20513-522.pdf
(Accessed: 13 NOV 2014).
Stapleton, Jane, The golden thread at the heart of tort law: Protection of the
vulnerable (2003) 24 ABR 135