LW 311 Business Law Chap18

Business Law Oxford Fajar Sdn. Bhd.
(008974-T) 2010
All Rights Reserved Ch18: 1
CHAPTER
18
Intellectual Property
Business Law Oxford Fajar Sdn. Bhd. (008974-T) 2010
OBJECTIVES
This chapter: lays down and discusses the laws, in particular, the legislation, governing intellectual property, such as copyrights
PREVIEW
Introduction Copyright Copyright in General Ownership and Assignment of Copyright Copyright Tribunal Infringements Offences
INTRODUCTION
intellectual property:
legal property rights over creations of the mind, both artistic and commercial, and the corresponding fields of law intangible property
area of law sometime known as the law of industrial property intellectual or industrial property comprises:
1. 2. 3. 4. Copyright Designs Patents Trademarks
COPYRIGHT

exists in original works protects all works that owe their origin to the expressive efforts of a writer, composer, artist or other creative individuals gives the individual the exclusive right to copy a particular form of expression of literary, dramatic, musical or artistic work applies to the expression of an idea, not the idea itself and belongs to the person who gives form to the idea see Donoghue v Allied Newspapers the Copyright Act 1987 enacted to make better provisions in the law relating to copyright and for other matters connected therewith
COPYRIGHT (cont.)

section 2 of the said Act defines copyright as meaning copyright under this Act section 7(1) of the Act provides that the following works are eligible for copyright:
a) b) c) d) e) f) literary works musical works artistic works films sound recordings broadcasts
COPYRIGHT (cont.)
section 3 provides definitions of:

material form literary work musical work artistic work film sound recording broadcast
see Computer Edge Pty Ltd v Apple Computer Inc the word copy in the law of copyright refers to the literal copying of a work altered versions of an original are not infringements of copyright
COPYRIGHT (cont.)
information set out in a different way is not a breach of copyright see John Fairfax and Sons Pty Ltd v Consolidated Press Ltd copyright shall not subsist under this Act in any design which is registered under any written law relating to industrial design designs are also known as industrial designs because they are used for some industrial purpose, usually to make a particular manufacturers products identifiable with that manufacturer and readily distinguishable from those of its competitors
1. Nature of Copyright
copyright in a literary, musical or artistic work, a film, or a sound recording or a derivative work shall be the exclusive right to control in Malaysia see Section 13(1) and 13(2) of the Act
COPYRIGHT (cont.)
2. Types of Copyright
section
7(1) of the Act provides that the following works are eligible for copyright:
literary works musical works artistic works films sound recordings broadcasts
Literary Works
section 3 defines literary work as including:

a) novels, stories, books, pamphlets, manuscripts, poetical works and other writings
COPYRIGHT (cont.)
b) plays, dramas, stage directions, film scenarios, broadcasting scripts, choreographic works and pantomimes
c) treatises, histories, biographies, essays and articles d) encyclopaedias, 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 h) computer programmes, but does not include official texts of the Government or statutory bodies of a legislative or regulatory nature, or judicial decisions
Business Law Oxford Fajar Sdn. Bhd. (008974-T) 2010 All Rights Reserved Ch18: 11
COPYRIGHT (cont.)
Musical Works musical work means any musical work, and includes works composed for musical accompaniment section 3 musical work would cover the lyrics of songs as well as the music Artistic Works section 3 defines artistic work to mean:
a) a graphic work, photograph, sculpture or collage, irrespective of artistic
quality b) a work of architecture being a building or a model for a building c) a work of artistic craftsmanship, but does not include a layoutdesign within the meaning of the Layout-Designs of Integrated Circuits Act 2000
COPYRIGHT (cont.)
artistic works include:

paintings sculptures drawings engravings photographs buildings or models of buildings other works of artistic craftsmanship
although the definition is of artistic work, the section specifically excludes artistic quality as a requirement it does not have to be good art
COPYRIGHT (cont.)
Circuits Layout a development of this area of law is the Layout-Designs of Integrated Circuits Act 2000 which gives protection similar to copyright and patent rights in respect to original circuit layouts for integrated circuits these rights are electronic layout (EL) rights the person who first makes an eligible layout is the owner unless he or she did so as an employee, in which case the owner is the employer the owner of the EL rights has the exclusive right to copy, manufacture or to exploit the layout commercially
COPYRIGHT (cont.)
Film section 3 film 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 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
sound recording 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
COPYRIGHT (cont.)
broadcast 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 b) is transmitted for presentation to members of the public, and includes the transmission of encrypted signals where the means for decrypting are provided to the public by the broadcasting service or with its consent
COPYRIGHT IN GENERAL
1. Publication
there is no requirement under the Copyright Act to register copyright it comes into existence upon publication of the work a literary, dramatic, musical or artistic work will be published only if copies of the work have been supplied to the public see section 4 the Director General of the Corporation the Controller of Copyright no copyright shall subsist otherwise than by virtue of the Copyright Act
COPYRIGHT IN GENERAL (cont.)
the following derivative works are protected as original works:

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

Copyright in Published Editions of Works under section 9(1), copyright shall subsist 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 b) the publisher of the edition was a qualified person at the date of the first publication thereof

Qualification for Protection copyright exists in a published original if the first publication of the work (made available to the public) was in Malaysia or if the author was a Malaysian citizen, a permanent resident or a resident (a qualified person) section 10
Qualification for Protection of Performer performers right in every live performance see section 10A

2. Nature and Duration of Copyright

copyright does not last forever under the Copyright Act:

the nature of copyright as regards design documents and models: see section 13A the effect of exploitation of design derived from artistic work: see section 13B things done in reliance on registration of design: see section 13C nature of copyright in works of architecture: see section 14 nature of copyright in broadcasts: see section 15
Nature of copyright

where the owner of the copyright in any literary, musical or artistic work authorizes a person to incorporate the work in a film and a broadcasting service broadcasts the film in the absence of any express agreement to the contrary between such owner and person, it shall be deemed that the owner of the copyright authorized the broadcast: see section 16(2) the nature of performers rights see section 16A
Duration of Copyright under section 17 copyright in literary, dramatic and musical works lasts for fifty years after the calendar year in which the author died
if the work has not been published, performed or offered for sale before the author dies, the copyright will last fifty years after the end of the calendar year in which it was first published where there are two or more authors, the copyright will last for fifty years after the death of the last surviving author for artistic works, sound recordings, broadcasts, films, television and sound recordings and published edition of works see sections 1822
works of the Government; Government organizations and international bodies a period of fifty years from the beginning of the calendar year next following the year in which the work was first published rights in a live performance a period of fifty years from the beginning of the calendar year next following the year in which the live performance was given
OWNERSHIP AND ASSIGNMENT OF COPYRIGHT
part IV of the Act makes provisions for issues on ownership and assignment of copyright:
First Ownership of Copyright: see section 26 Assignment, Licenses and Testamentary Disposition: see section 27
part IV (A) of the Act provides for copyright licensing; including in relation to the copyright in literary or musical works; references of proposed licensing scheme and licensing scheme to the Tribunal; application for grant of licence in connection with licensing scheme; reference to Tribunal of expiring licence; effect of order of Tribunal as to licence, etc.
COPYRIGHT TRIBUNAL

was established pursuant to section 28 of the Copyright Act 1987 the constitution of the Tribunal is stated in section 29 proceedings before the Tribunal are as set out in section 30 matters concerning the Tribunal see Part V of the Act remedies for infringements and offences see Part VI
INFRINGEMENTS
infringement of copyright if a person reproduces in a material form, the whole (or even part) of a literary, dramatic, musical or artistic work that is subject to copyright, without the consent of the owner: section 36 of the Act the civil remedies for infringement of copyright are:
1. Injunction restrains the infringement or threatened infringement of the copyright 2. Damages or an account of profits amount of money that will compensate the author for the loss suffered as a result of the infringement; such as the fees lost in the unauthorized performance of a musical work or the loss of sales of a book
INFRINGEMENTS (cont.)

restriction on importation of infringing copies see section 39 back-up copies of computer programs see section 40 the courts will therefore make an order permitting the plaintiffs representatives to enter premises to search for and remove copies of the work or other material or documents relating to them Anton Piller orders can also be used against defendants who are persistent in their breach see Anton Piller KG v Manufacturing Processes Ltd
OFFENCES
1. Compounding of Offences

see section 41A of the Act see section 43 of the Act PART VII of the Act provides wide powers for enforcement any persons who obstruct searches or the exercise of powers by the Assistant Controller or police officer not below the rank of Inspector shall be guilty of an offence section 48
2. Penalty
3. Enforcement
REVIEW
Introduction Copyright Copyright in General Ownership and Assignment of Copyright Copyright Tribunal Infringements Offences

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section 3 provides definitions of:

Business Law Oxford Fajar Sdn. Bhd. (008974-T) 2010

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section 3 defines literary work as including:

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artistic works include:

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COPYRIGHT IN GENERAL (cont.)

the following derivative works are protected as original works:

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COPYRIGHT IN GENERAL (cont.)

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COPYRIGHT IN GENERAL (cont.)

COPYRIGHT IN GENERAL (cont.)

copyright does not last forever under the Copyright Act:

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COPYRIGHT IN GENERAL (cont.)

COPYRIGHT IN GENERAL (cont.)

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COPYRIGHT IN GENERAL (cont.)

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OWNERSHIP AND ASSIGNMENT OF COPYRIGHT

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