Malaysia 2011

Legal background

Scope and duration of copyright

Does copyright end immediately after the minimum period mandated by the Berne Convention? In part
In general yes save that photographs are protected for 50 years from the author’s death or first publication.
CA s.17
Are works that are not fixed in some material form excluded from copyright? Yes
CA s.17
Has a court or tribunal ever limited the exercise of copyright under competition law, for example by imposing compulsory licensing or regulating royalties charged by dominant rights holders? No
Copyright law only covers the expression of idea not the idea itself – thus, others may reuse that idea in another form(s).
CA s.7(3)
Has a court or tribunal ever limited the exercise of copyright pursuant to a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? In part
The Constitution of Malaysia entitles citizens to freedom of speech and expression, but this freedom may be limited by the Parliament for a variety of purposes.
Constitution Article 10
Are databases of non-original material excluded from copyright? Yes
Are rights holders prohibited from excluding user rights under copyright law? No
Is computer software excluded from the scope of patentable subject matter? In part
The Act is ambiguous. But so far, software as such has not been patented in Malaysia.
PA s.13(i)

Freedoms to access and use

By Home UsersIs there any general user right that is based on a set of balancing criteria, such as a "fair use" right? In part
Copies of broadcast materials may be made for the private and domestic use of the person by whom the copy is made.
CA s.13 (2) (gg), 13 (2) (ggg)
Is time, space and format shifting allowed (such as ripping music from CD to an MP3 player)? In part
Copies of broadcast materials may be made for the private and domestic use of the person by whom the copy is made.
CA s.13 (2) (gg), 13 (2) (ggg)
Can consumers reproduce copyright material for their own use in the original format, for example for backup purposes? In part
Only for computer software.
CA s.40
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? In part
A work may be performed, showed or played by a non-profit making club or institution for charitable or educational purposes where no admission fee is charged.
CA s.13(2)(k)
For EducationMay students copy works for private research or study? Yes
If the use of the reproduction is public, it must be accompanied by an acknowledgment of the title of the work and its authorship.
CA s.2(a)
Does any such research and study provision cover distance and online education? Yes
May translations of works be made for educational purposes? Yes
This facility also exists for non-educational purposes, but a compulsory license fee assessed by the Copyright Tribunal must be paid.
CA s.31
May educators copy works for use in the classroom? In part
Only as an illustration for teaching purposes to the extent compatible with fair practice.
CA s.13(2)(f)
OnlineAre temporary or transient copies, incidental to a lawful use, excepted from copyright? In part
Only to the extent that audio and visual recordings must remain fixed in a material form for more than a transitory duration.
CA s.3
Does the law exclude or limit the liability of intermediaries such as ISPs for copyright infringements carried out on their network? No
Is Internet access free of ISP filtering or monitoring for potential copyright-infringements? In part
ISPs are required to use their best endeavours to prevent their network facilities from being used in the commission of any offence under any law of Malaysia. In practice, this has not involved proactive filtering.
CMA s.263
By content creatorsIs there any protection for consumers who non-commercially remix or mash up copyright works? No
Unless the idea of that same works used not the works.
May computer software be copied for the purpose of reverse-engineering interoperable software? No
Is the incidental inclusion of a work in other material permitted? Yes
The incidental inclusion of a work in an artistic work, sound recording, film or broadcast is permitted.
CA s.31(2)(e)
Is there are copyright exception for parody or satire? Yes
CA s.31(2)(b)
By the pressIs there a copyright exception for the news of the day? Yes
The source must be given, and the copyright owner may expressly reserve the right to reproduce articles published in newspapers or periodicals on current topics.
CA s.31(2)(a), s.31(2)(n)
May copyright material be reproduced for the purposes of review and criticism? Yes
The title of the work and its authorship must be acknowledged
CA s.31(2)(a)
May quotations be used for any purpose? Yes
If they are compatible with fair practice and their extent does not exceed that justified by the purpose
CA s.31(2)(m)
By LibrariesMay libraries copy works if they cannot reasonably be obtained commercially? Yes
Such use must be in the public interest, compatible with fair practice and the provisions of any regulations, and no profit may be made or admission fee charged - this applies also to works that can be obtained commercially.
CA s.13(2)(i)
May librarians copy works for users for the purpose of research or study? In part
Only in the circumstances given above. The separate research and study exception in s.13 (2)(a) is only available to copies made by the researcher or student.
CA s.13(2)(i)
Are libraries allowed to make preservation or archive copies of materials in their collections? In part
Only in the circumstances given above, with additional authorisation to the official archives to preserve material of exceptional documentary character broadcast by government-owned broadcasters.
CA s.13(2)(i), s.13(2)(j)
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? In part
Copies of television broadcasts that are subtitled or adapted for those with disabilities may be issued to the public by prescribed non-profit making bodies or institutions.
CA s.13(2)(gggg)
In public affairsAre laws excluded from copyright? No
Are other governmental works excluded from copyright? No
Are the results of publicly funded research required to be published under an open access license? Yes
s.13(2)(l)

Freedoms to share and transfer

Does the law permit a work to be released to the public domain before the copyright term expires, without any formality other than an overt act of relinquishment? Yes
Can public domain works be used without the need for any payment or registration of the use? Yes
Does the law make special provision for the legal use of orphaned works? No
Is parallel importation of copyright works permitted? Yes
Unless the importer knew or ought reasonably to have known that the making of the imported article in Malaysia would have been an infringement of copyright.
CA s.36(2)
Are there national programmes or policies to promote the use, production or dissemination of openly-licensed material such as free and open source software or open educational resources? Yes
In 2004 a Malaysian Public Sector Open Source Software Master Plan was launched to encourage and guide the Public Sector to adopt, develop and pervasively use Open Source Software (OSS).
Are there national programmes or policies that specify or promote the use of open document formats? No

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual? RM 50 000 or imprisonment for 5 years or both, higher for multiple or repeat infringements or for possession of counterfeiting equipment. CA s.41, s.43
What is the maximum penalty for copyright infringement for a corporation? RM 50 000 or imprisonment for 5 years or both, higher for multiple or repeat infringements or for possession of counterfeiting equipment. CA s.41, s.43
Is innocent infringement of copyright treated differently by the law? Yes
Penalties per infringing copy of up to ten thousand ringgit and/or five years imprisonment do not apply to copies made for private and domestic use, or where the infringer can prove having acted in good faith without reasonable grounds for supposing that copyright would or might be infringed.
CA s.41
Is the creation or distribution of devices that can circumvent technological protection measures (TPM) permitted, where such devices can be used for legal purposes? No
Only the circumvention of measures that "restrict acts ... which are not authorized by the authors concerned or permitted by law" is prohibited. However arguably this does not allow the circumvention of an effective technical protection measure that restricts both prohibited and permitted acts
CA s.36(3)
Is the use of such devices by consumers or intermediaries permitted in the legal exercise of user rights? No
The supply of such devices could be treated as the prohibited act of causing another other person to circumvent an effective technical protection measure
CA s.36(3)
Does national copyright or consumer protection law require that the use of TPMs on copyright works be disclosed to consumers? In part
The failure to disclose a material limitation on the functionality of goods can amount to misleading or deceptive conduct in trade or commerce.
CPA s.10
Are there cases in which the availability of injunctive relief for copyright infringement is limited by the law on public policy grounds? Yes
No injunction shall be issued in proceedings for infringement of copyright which requires a completed or partly built building to be demolished or which prevents the completion of a partly built building.
CA s.37(3)
Have major ISPs resisted requests from copyright owners to pass on allegations that their users have engaged in copyright infringement? Yes
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? No
Are damages for copyright infringement limited to the loss sustained, rather than a pre-established or statutory damages award? Yes
The court will calculate the loss incurred and will award accordingly.
Is there provision to penalise the wrongful allegation of copyright infringement? No
The burden of proof lies on the owner or assignee claiming for the copyrighted work and if it is not proven, the defendant would be released from the charge(s) without compensation.
Is there provision to penalise the obstruction of consumers' exercise of user rights? No

Conclusions

In 1997, the Copyright Act was amended. The amendment makes unauthorized transmission of copyright works over the Internet includes an infringement, and introduced performance rights in Malaysia – promulgated as a step to comply with TRIPS, and with some provisions originating from the WPPT. Live performances of musical, folklore, puppet show, theater, recital, reading and dance are now under Malaysian copyright protection and enjoy all of its benefits, but audience recordings are excluded. Thus, should their performance be uploaded by the audience, without their permission in a website such as Youtube or Facebook, the recording cannot be regarded as copyright infringement.

Other amendments made were to the scope of right of derivative works, a communication to the public right, transmission of work over the Internet and making the work available to the Internet.

For the disabled, there should be more leniency and accessibility. Currently there is very limited access to knowledge for this group. Serious consideration should be given towards developing a special code allowing alternative access methods depending on their disability  For example Malaysia has established a Copyright Tribunal to grant licenses to produce and translate a copyright work into the national language, and the opportunity should be taken to allow the granting of licenses to companies to translate works into a Braille version.

The Copyright Tribunal also hears arbitration for contesting parties over copyright disputes. This is one way in which Malaysia has responded to bilateral criticism such as that in the USTR Special 301 Report, as a mark of improved protection for intellectual property. Similarly, since 2003, penalties by way of fines and imprisonment for infringements of copyright have been increased and hardened.  However press reports this year that piracy prosecutions may be initiated for the possession of as little as one infringing disc, indicate that the pendulum may have swung too far.

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