Malaysia Copyright Protect Service
Hotline: 86-755-82143422 Email: anitayao@citilinkia.com
I venture now to look at some of the provisions of the Malaysian Copyright Act 1987 and examine the orientation of our copyright law, whether it truly balances the various competing interests or whether it is more copyright owner-centric.
First, allow me to expand a little on the mechanism by which the balance is sought to be achieved. As with copyright laws elsewhere, Malaysia's copyright law contains provisions that attempt to achieve the balance in two ways; first, through the operation of its basic principles, such as categories of protected works, idea-expression dichotomy, the duration of protection conferred, and the scope of protection; and secondly, and more notably by way of limitations and exceptions to the exclusive rights conferred upon copyright owners. Typically, these permitted acts include fair dealing, or as it is known in some countries, fair use, exceptions created for educational and other purposes, the making of back-up copies of computer programs, and statutory or compulsory licensing.
As far as the principles of copyright are concerned, there are at least four areas that I wish to outline. First, although copyright law covers a wide range of subject matter, not all works are protected.
Before any work may be protected, it must fall within one of the categories of protected works, it must be original in the sense that it was the result of the skill and effort of the author or creator, and it must be in some material form.
Secondly, it is a fundamental principle, now given statutory imprimatur in the form of section 7(2A), that copyright only protects expressions and not ideas. In simple terms, this means that while the idea underlying any work may be freely copied, the expression of that idea may not. In that way copyright ensures that there is a free flow of ideas, and that ideas as such do not become the monopoly of those who reduced these ideas into expression. However, the distinction between idea and expression is not always easy to define or maintain. Much depends on the court deciding the case. Take for instance, drawings of designs for the manufacture of articles. Does copying the drawing or the article made from the drawing constitute taking the idea or the expression of the design? In Malaysia, there are two views on the matter. In Peko Wallsend Operations Ltd v Linatex Process Rubber Bhd, the defendants were alleged to have copied the plaintiffs' slurry pump by way of reverse engineering. In response to one of the questions posed by the plaintiffs, whether such copying constituted an infringement of their copyright in drawings of the slurry pump, the High Court answered in the affirmative. In contrast, in the case of Goodyear Tire & Rubber & Anor v Silverstone Tire & Rubber Co Sdn, which dealt with the question of whether the defendant had copied the tread design of the plaintiffs' Aquatred tyres, thereby infringing the plaintiffs' copyright in drawings of their tyres, the High Court refused to grant an injunction. The Court held that what the plaintiffs were basically seeking to protect was the idea of the function of the tyre, which being an idea, the law of copyright did not protect. The process of defining the idea-expression dichotomy continues and I suspect it will not be made easier with the inclusion of section 7(2A).
The third way by which copyright strives to maintain a balance between the competing interests is by ensuring that protection is only for a prescribed period of time after which the work falls into the public domain to be freely available for the use of the public. The typical period of protection is life of the author plus 50 years after his death. Some may ask, why this figure of 50 years? When copyright was first introduced into the various components of present-day Malaysia, the duration of copyright was generally 50 years. When our first national copyright law was introduced in 1969, the duration was shortened to 25 years. Under our existing copyright law which replaced the 1969 law in 1987, the duration was brought back to the internationally-accepted norm, that is, 50 years. How and why 50 years is chosen is purely historical. There is little basis to suggest that the duration of 50 years is sufficient for the protection of the copyright owners or that public good would be served if copyright was so limited. Even so, there have been moves in some countries to extend the duration of copyright to more than 70 years, ostensibly on the basis of the increased life expectancy and for the benefit of the heirs of the authors beyond the first generation. The more cynical among us would of course ascribe commercial reasons behind such a move. However, the duration of 50 years is now the minimum period fixed by international conventions though perhaps not for long.
The duration of copyright protection is much longer than that under patent law. However, unlike patent law, copyright does not confer a true monopoly on the rights holder, which brings us to the fourth way by which copyright maintains a balance between the private rights of the copyright owner and the interest of the public in the public domain. Copyright does not proscribe independent creation. When an action is brought against a defendant for alleged copying, it is not sufficient to prove that there are similarities between his work and that of the plaintiff. Before any infringement of copyright could be said to have occurred, there must be some nexus between the original work and that of the defendant's work, that is, the defendant must have copied the plaintiff's work. If the defendant had fortuitously created a work which bears similarities to that of the plaintiff but had not copied or had any access to the plaintiff's work, the defendant is not liable for infringement. In this way, everyone is free to create any work no matter how unoriginal or similar so long as there is no copying of any existing work.
Finally, I come to the permitted acts. Copyright law entitles the copyright owner to control the doing of a variety of acts. However, in certain circumstances, the users may have access to and use of copyright works for various purposes without having to seek the permission of the copyright owner and without infringing copyright, notably in the areas of education, research, the media and access to information; the copyright owner's right to control does not extend to these acts. In the Malaysian context, there are altogether at least 20 permitted acts, applicable, with some exceptions, to all works protected under the Act.
One significant example of a permitted act is that of fair dealing or what is known as "fair use" in some countries. Under our law, acts done by way of fair dealing for the purposes of private study, non-profit research, criticism, review or reporting of current events and accompanied by acknowledgements are not infringing acts.
There are also other permitted acts which may be classified broadly under education, press or mass media, legal and judicial, and government. These include exceptions made for the press, broadcasters such as the use of short quotations from published works, newspaper articles and periodicals, the reproduction of articles published in newspapers or periodicals on current topics and the reproduction of lectures and addresses delivered in public. There are also exceptions for the use of a work in judicial proceedings. Of relevance to us in the university is the provision permitting use of a work by prescribed educational, scientific or professional institutions, libraries or archives. In so far as education is concerned, apart from the fair dealing provisions, there are provisions permitting the use of literary or artistic works for the purpose of illustrations used in teaching; recordings made in schools, universities or educational institutions of broadcasts meant for such bodies; provisions for use of work for the purpose of setting examination questions, and others.
It should be noted that there is no defence of private use as such, unlike the position under the repealed Copyright Act 1969, under which fair dealing for private use was permitted. You will note that this has become a much debated issue currently with the right-holders commencing actions against individual users who swap music using peer-to-peer networks over the Internet. Users would like to claim the defence of personal use, particularly in relation to copies which they have purchased, which may very well hold water in some jurisdictions but which is suspect in this country.
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