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Malaysia

Thu, 04/02/2010 - 12:07 — mohana priya

Legal background

Scope and duration of copyright

Is the period of protection of each type of copyright work limited to the minimum duration mandated by the Berne Convention? LIMITED
In general yes save that photographs are protected for 50 years from the author’s death or first publication.		 CA s.17
Must a work be fixed in some material form before copyright attaches? YES
CA s.17
Is the exercise of copyright subject to competition law, for example by compulsory licensing or regulation of royalties in the case of copyright holders who misuse their monopoly power? 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)
Is the exercise of copyright subject to compliance with a bill of rights or similar human rights instrument, for example by preventing copyright from being used to stifle protected speech? LIMITED
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
Does the compilation of a database of non-original material fall outside the scope of copyright? YES
Do exceptions and limitations in national copyright law prevail over contracts purporting to limit or override them? NO

Freedoms to access and use

By Home UsersIs there a general exception for the fair use of copyright material for any purpose that satisfies a set of balancing criteria? LIMITED
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)? LIMITED
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? LIMITED
Only for computer software.		 CA s.40
Can works be communicated to a limited public (for example, family and friends) without infringing copyright? LIMITED
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)
Does a collective licensing scheme permit the copying or sharing of copyright material by consumers in exchange for a media or equipment levy? NO
For EducationIs reproduction permitted for the purposes of 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 works be reproduced and published by educational institutions in connection with systematic instructional activities? LIMITED
Only as an illustration for teaching purposes to the extent compatible with fair practice. 		CA s.13(2)(f)
OnlineIs hyperlinking to a Web site allowed without permission of the site's owner? YES
It acts as a footnote or identifying another source – it does not involve a copy of any works.
Are temporary or transient copies, incidental to a lawful use, excepted from copyright? LIMITED
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
Are ISPs protected from liability for infringements by third parties, because the law either does not impose liability upon intermediaries or limits their liability in certain circumstances? NO
Do ISPs provide Internet access without conducting filtering or monitoring for potential copyright-infringing material? LIMITED
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
Are the names and personal information of customers who are alleged to have engaged in copyright-infringing behaviour protected from disclosure by their ISPs? NO
Copyright owners may apply to court for subpoenas to produce the names and personal information of such customers.
By content creatorsCan copyright works be non-commercially remixed or mashed up into new works? NO
Unless the idea of that same works used not the works.
May computer software be reverse engineered for the purpose of creating 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)
Do creators who license their work retain the moral right of attribution? YES
CA s.25
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 political speeches, speeches in judicial proceedings and/or other public speeches be used for any purpose? NO
There is no separate copyright exception allowing speeches to be reproduced except for a permitted "fair dealing" purpose.
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 that 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 libraries copy works for users for the purpose of research or study? LIMITED
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? LIMITED
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)
In making permitted copies, are libraries entitled to circumvent technological protection mechanisms (TPMs)? NO
CA s.36(3)
By disabled usersIs it permissible to copy or adapt work for the use of those with disabilities? LIMITED
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
Is there a copyright exception for use of material in judicial proceedings? YES
CA s.13(2)(l)
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

May copyright works be freely offered for commercial rental? NO
CA s.13(1)(f)
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
Are orphaned works treated differently in the law to other copyright works, for example by allowing them to be compulsorily licenced, limiting remedies, or by releasing them into the public domain? NO
Is parallel importation 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 incentives for the use, production and dissemination of free and open source software within copyright law or elsewhere in national law/policy? 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 incentives for the use, production and dissemination of open access material (e.g. textbooks) within copyright law or elsewhere in national law / policy? NO
Are there specifications or incentives in national law/policy for 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
Do the penalties for copyright infringement distinguish between personal versus (large-scale) commercial use, other than at the discretion of a judge? 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 purposes that would not infringe copyright? 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 permitted for any purpose that would not infringe copyright? 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 disclosure to consumers of the existence of TPMs and any potential limitations on the use of TPM-protected material? LIMITED
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 the operations of copyright collectives subject to public oversight? LIMITED
All companies, including collecting societies, are required to submit their annual audited accounts to the Registrar of Companies.		 CoA s.143, 165, 169
Are ISPs independent of copyright owners, to the extent that no law or industry code of conduct requires them to notify their users who are alleged to have committed a copyright infringement online? YES
Are criminal sanctions limited to cases of large-scale commercial counterfeiting? NO
Are damages for copyright infringement based on the loss sustained, rather than by 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.

Conclusions

In 1997, the Copyright Act was amended. The amendment makes unauthorized transmission of copyrighti works over the Internet includes an infringement, and introduced performance rights in Malaysia – promulgated as a step to comply with TRIPSi, and with some provisions originating from the WPPTi. 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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