Beruflich Dokumente
Kultur Dokumente
Copyrights
Musbri Mohamed
DIL; ADIL ( ITM )
MBL ( UKM )
1
The preamble of the Statute of Anne 1709 states
that the objective of copyright is:
2
Copyright has long served to accommodate the conflicting
interests of the copyright owners and the public. It is to this end
that the law has drawn certain constraints on these exclusive
rights and imposes certain behavioural limits to obviate the
creation of monopolistic situations and the perceived danger of
abusing the competitive advantage conferred by intellectual
property.
3
A renewed awakening of the role of intellectual property
in the countries of the various regions of the world has
led more recently to the adoption or revision of national
legislation on patents for inventions, industrial designs,
trademarks, copyright and related rights and the transfer
of technology, as well as to the establishment or
modernization of government structures that administer
such legislation.
4
Following a round table organized by WIPO in 1979
for professors interested in teaching industrial
property law, the International Association for the
Advancement of Teaching and Research of
Intellectual Property (ATRIP) was established in
1981.
5
The importance of intellectual property in the modern world goes far beyond
the protection of the creations of the mind. It affects virtually all aspects of
economic and cultural life. As a result, intellectual property education at the
university level is of increasing relevance in educational programs.
6
Peter Drucker presents a case for k-economy
when he says in The Age of Social
Transformation that the future is 'an economic
order in which knowledge, not labour or raw
material or capital, is the key resource; a special
order in which inequality based on knowledge is
a major challenge'.
7
Enforcement of intellectual property rights did
make great strides in Malaysia, especially for the
past year. The USTR on its 301 watch list report
are amongst those who commend Malaysia for
‘strong commitment to strengthening IPR
protection and enforcement’.
8
Copyright is a property right which protects a wide
variety of works.
9
A unique feature of the Act is the
inclusion of provisions for its
enforcement.
10
The Berne Convention for the
Protection of Literary and Artistic
Works (Article 2) states: “The
expression ‘literary and artistic works’
shall include every production in the
literary, scientific and artistic domain,
whatever may be the mode or form of
its expression”.
11
Works eligible for copyright
(a) literary works;
(b) musical works;
(c) artistic works;
(d) films;
(e) sound recordings; and
(f) broadcasts.
12
Copyright relates to artistic creations, such as books,
music, paintings and sculptures, films and technology-
based works such as computer programs and electronic
databases. In most European languages other than
English, copyright is known as author’s rights. The
expression copyright refers to the main act which, in
respect of literary and artistic creations, may be made
only by the author or with his authorization. That act is
the making of copies of the work.
13
One main problem with a digitized work is its
ease of reproduction, manipulation and
replication. The creators of digital works argue
that since a digital work can easily be copied at a
lower cost, piracy of these works would be more
rampant . In turn, this prejudices the adequate
remuneration of the copyright owner.
14
In the absence of legal formulation, many issues are
unsettled with regards to the scope of exclusive
rights of electronic works. What is the legal
position if a digital work is transmitted to another
location? Will this constitute a reproduction of the
work?
15
The development of case laws in the US supporting the contention that
the placement of copyright material into a computer's memory is a
reproduction of that material. These cases are MAI System Corp v
Peak Computer Inc, Advanced Computer Services v MAI Systems
Corp and Triad Systems Corp v Southeastern Express Co.
16
Not surprisingly, many writers point to the paradox
resulted from this development. While a person may
browse through print works in a shop, he cannot
simply browse through digital works as every time he
does this he will create a complete copy of electronic
files for replication on a computer screen and hence
committing infringement of copyright.
17
Coming back to our local scene. What is
then the position of 'electronic
transmission' under the Copyright Act
1987? Section 13 does not cover such
mode of transfer of work.
18
The unique nature of electronic works posed
innumerable problems. While the owner of
electronic works argue that their works
should be protected under copyright, just as a
print work, the ease of replication of such
work requires special attention.
19
Copyright laws also protect other modes or forms of expression
of works in the literary, scientific and artistic domain, which are
not included in the list.
20
Multimedia productions are another example of a type of
work not listed in the Berne Convention, but which clearly
comes within the notion of creations in the literary, scientific
and artistic domain. While no acceptable legal definition has
been developed, there is a consensus that the combination of
sound, text and images in a digital format, which is made
accessible by a computer program, embodies an original
expression of authorship sufficient to justify the protection of
multimedia productions under the umbrella of copyright.
21
Originality
22
In the case of University of London Press v University
Tutorial Press it was held that “the word ‘original’ does not
mean that the work must be an expression of original or
inventive thought…the originality that is required is related to
the expression of thought”. This equates with the principle that
the work must not of course have been copied, and must be the
own work of the person claiming the copyright.
Thus, as long as the work is not copied, even if one produces
something which is similar to someone else’s work, the former
could still own the copyright in his own work.
23
In Nottinghamshire Healthcare National Health Service
Trust v News Group Newspapers Ltd [2002] RPC 49 a
photograph of a patient at Rampton Hospital was copied without
permission and published by the defendant with a sensational
article. It was held that defendant had reaped a significant
economy benefit from publication of a photograph that was
obviously stolen and taken without permission from Rampton
Hospital.
24
The right for database protection initiatives is the diminished
ability of copyright and/or other legislation to protect the same.
25
First or made in Malaysia
26
The first work must be the result of skill and judgment. As
Pumfrey J said in Cantor Fitzgerald International v
Tradition (UK) Ltd. [2000] RPC 95:-
….it is possible that entirely mechanical labour may be
saved by copying something produced by entirely
mechanical labour, involving no skill.
Taking a photograph of an object will usually require
some degree of skill extended by the photographer even if
the object photographed is fairly mundane. Skill may
derive from the choice of angle, lighting and positioning
of the object.
27
HONDA GIKEN KOGYO KABUSHIKI KAISHA v ALLIED
PACIFIC MOTOR (M) SDN BHD & ANOR
[2005] 3 MLJ 30
The fact that similar designed vehicles had been sold in Thailand
earlier than the registration of the plaintiffs exclusive right, was
irrelevant for purposes of the definition of 'new'. It is thus conclusive
that prior to or on the date of the plaintiff's registration of its designs
(on 7 December 2000), no industrial designs similar in material details
or features, or even differing only in immaterial details or in
features to the plaintiff's designs were disclosed in Malaysia or had
been registered in Malaysia . On the day the designs were
registered, they were indeed new. With all the material requirements of
the Industrial Designs Act having been adhered to, the final act of the
registrar to issue the certificates was certainly above criticism .
28
A qualified person
29
Infringement of Copyright
Section 36(1) of the Copyright Act 1987 states that copyright is infringed by
any person who does, or causes any other person to do, without the licence of
the owner of the copyright, an act which is controlled by copyright under the
Act. According to s 13(1) of the Act, copyright in a literary, musical or artistic
work, a film, a sound recording or a derivative work shall be the exclusive right
to control in Malaysia:
30
Who owns the copyright to the computer-generated
work?
31
The Malaysian Copyright Act 1987 does not define the meaning of a
computer-generated work, unlike the Copyright, Design and Patent Act
1988 (United Kingdom) which gives a specific definition of such a work.
Due to the advances of computer technology, it is rather important to define
this work clearly in the Act so as to avoid disputes in the future, particularly
on the issue of ownership.
Although the CDPA 1988 UK is a close example for Malaysia, it is not the
best model since the definition given in s 178 of the CDPA 1988 UK and the
provision regarding ownership in s 9 of the same Act are in contradiction
with one another. Section 178 defines the computer-generated work as a
work created by the computer with no human author. Whereas s 9 of the said
Act provides that the author is the person by whom the arrangements
necessary for the creation of the work are undertaken. This will generally
mean that the person who has control of the computer will be the author of
any computer- generated work.
32
Even though the Copyright Act 1987 does not mention about
computer-generated work, the Act in s 3 has categorized computer
programs as literary works.
33
Copyright or Trademark ? Framing
34
In Malaysia, the situation is similar to that in the UK: there is no
specific provision regarding framing. As a Commonwealth country,
Malaysia is influenced by the development of the law in the UK.
Therefore, it is submitted that, in the absence of a legislative
provision on framing in UK and Malaysian law, then the principles of
copyright and trademark law may be the best solution to the problem.
The Malaysian Copyright law is similar to UK law.
35
Who Controls the Internet is a manifesto, or perhaps
more accurately, a counter-manifesto. It targets the
“visions of a post-territorial order” popularized during
the Internet boom of the mid-1990s . Internet
enthusiasts such as Julian Dibbell and John Perry
Barlow created a powerful vision of the Internet in the
1990s as “a new frontier, where people lived in peace,
under their own rules, liberated from the constraints of
an oppressive society and free from government
meddling”
36
The jurisdictional complications of the Internet have led to a
number of international disputes and efforts at resolution among
traditional territorial governments.
37
The utopians of the 1990s were “in the grips of a strange
technological determinism that views the Internet as an
unstoppable juggernaut that will overrun the old and outdated
determinants of human organization” . But the utopians were
wrong, as they failed to see that ultimately it is governments
that control the Internet, not the Internet that controls
governments.
38
When can law successfully regulate the
Internet?
39
DEALINGS IN COPYRIGHT S.27(1)
Assignment
The transfer of ownership of the proprietary in the
copyright work can be made through sale, hire, under a will
for natural love and affection .
License
An authorization or permission to do the exclusive rights of
the copyright owner, without it , the act will amount to an
infringement of copyright.
Testamentary Disposition
This method of transmission must be dealt in accordance to
the provision stated in the Distribution Act 1958.
40
DEFENCES OR GUIDANCE OF USE OF FAIR DEALING
41
The requirement to established direct infringement was set out in the
case of Purefoy Engineering Co Ltd v Sykes Boxall & Co Ltd (1955)
72 RPC 89. The requirements are as follows;
-There must be sufficient objective similarity between the original work
or a substantial part thereof, and the infringing copy;
-There must be 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
-What has been infringed must constitute a substantial part of the
original work.
42
Although the Law on Copyright in Malaysia is not
precise, as Copyright exists automatically upon
creation of work. There are no definite and actual
processes to register a Copyright in Malaysia. But by
way of considering case laws and facts; the law on
Copyright still remain just and fair protecting the
innocent or injured party. There could be infringement
even though the imitation is not an exact replica. It
does not matter the size or whether the whole or part
of the original was copied.
43
Megnaway Enterprise Sdn Bhd v Soon Lian Hoc (Sole proprietor of
the firm Performance Audio & Car Accessories Enterprise) [2009] 3
MLJ 525
The Plaintiff's claim was base on the Defendant's infringement of their
Copyright and unlawful interference with the Plaintiff's trade or business.
The learned defense counsel submitted that the Plaintiff had failed to
establish that sufficient effort has been expended on the artistic work and
so it is not eligible for Copyright according to the law, Section 7 (3)(a) of
the Copyright Act 1987 (hereinafter referred as the Act). However, the
Plaintiff's managing director was able to submit that the artistic work
(drawings) were completed almost 20 years ago and has expended
substantial amount of skill, labor and effort and the artistic work was
therefore original.
44
Telstra Corporation Limited v Desktop Marketing Systems Pty Ltd [2001]
FCA 612, the Federal Court of Australia ruled that Telstra, the Australian
owner/publisher of the innocuous White Pages and Yellow Pages telephone
directories, had copyright in the content of the directories. Consequently, the use
of the data by the Desktop Marketing constituted an infringement of the
copyright, and therefore, the offending product was removed from sale.
It is, therefore, to be noted that copyright was conferred to the compilation by
Telstra, because in calling it into existence, it attracted much skill, labour and
judgement from the creators.
Hence, regardless of the fact that extraneous sources had been tapped in the
creation of lecture notes, by lecturers of institutes of education, it would be the
case that such created teaching materials would bear copyright, and the copyright
would belong to the employer of the creator if it was so created pursuant to the
terms of his employment.
45
European countries have already in place commendable
practices to fight copyright violations and piracy online,
according to the recently adopted European Charter for
the Development and the Take-Up of Film Online. The
Charter was signed by top executives from the film and
online industries and high government officials during
The 59th Cannes International Film Festival and seeks to
extend the number of existing practices to fight copyright
infringements and piracy. The Charter serves as reference
for commercial agreements to distribute film online and
also for the Content Online Policy of the European
Commission.
46
The Danish Supreme Court has established the need to comply
with the Copyright Directive and allowed for the issuance of
preliminary injunctions to protect plaintiffs against extensive IPR
infringements, while The Austrian Supreme Court has ordered
ISPs to disclose the names and addresses of users who have
committed said infringements. The Swedish Data Protection Board
has allowed the Swedish Anti-Piracy Bureau to process the IP
numbers of individuals who make copyrighted material available
to others, inform ISPs of serious copyright infringements and take
violators to Court.
47
The French Syndicate of Recreational Software has
in place a system to automatically detect IPR
infringements when Internet users illegally share
videogames, while the French Data Protection
Authority views positively the issuance of warning
messages to surfers who illegally download
software or make available videogames in peer-to-
peer, file-sharing networks. A representative of the
French Syndicate of Recreational Software, vetted
by the Ministry of Culture, may retrieve the IP
addresses of individuals who make available the
videogames.
48
17th July 2007 marked the advancement of intellectual
property enforcement in Malaysia, when an
intellectual property court was established, in line with
the TRIPS Agreement.
49
As what Branding Association of Malaysia
President Lewre Lew said :-
Thank you.
50