Malaysia

Legal background

Copyright legislation	Copyright Act 1987 ("CA") From http://www.commonlii.org/my/legis/consol_act/ca1987133/
Other relevant laws	Constitution of Malaysia ("Constitution") From http://www.commonlii.org/my/legis/const/
	Communications and Multimedia Act 1998 ("CMA") From http://www.commonlii.org/my/legis/consol_act/cama1998289/
	Consumer Protection Act ("CPA") From http://www.ciroap.org/apcl/statutes_content.php
	Companies Act 1965 ("CoA") From
Copyright treaties	Berne Convention	Berne Appendix	TRIPS	WCT	WPPT
Other relevant treaties

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.7(3)
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
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?	NO 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 Users	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)
	In any other cases may reproductions be made on a private, noncommercial basis, for example through peer-to-peer file sharing?	NO
	Are blank media and computer hardware sold free of compulsory levies collected for copyright owners?	YES
For Education	Is reproduction permitted for the purposes of research or study?	YES If the use of the reproduction is public, it must be accompanied by an acknowledgement of the title of the work and its authorship.	CA s.2(a)
	Is it permissible to copy an entire work and to make any number of copies?	LIMITED Any copying must qualify as "fair dealing". Although this term has not been defined in the legislation or local court authority, it certainly places some limits on the extent of copying that is permitted.	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 licence 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)
Online	Is hyperlinking to a Web site allowed without permission of the site's owner?	YES
	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
	Is caching of Web content permitted?	NO
	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 creators	Can a recording or performance of a musical work be made under compulsory license from the composer?	NO
	Can copyright works be non-commercially remixed or mashed up into new works?	NO
	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)
	Is there a copyright exception for professional advice?	YES But only from legal practitioners.	CA s.31(2)(l)
	Do creators who license their work retain the moral right of attribution?	YES	CA s.25
	Does copyright law contain provisions regarding traditional knowledge/folklore?	NO
By the press	Is 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 Libraries	May 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)
	Is the reproduction of unpublished works by libraries permitted?	LIMITED Only in the circumstances given above.	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)
By disabled users	Is 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 affairs	Are laws excluded from copyright?	NO	CA s.11
	Are other governmental works excluded from copyright?	NO	CA s.11
	Is there a copyright exception for use of material in judicial proceedings?	YES	s.13(2)(l)

Freedoms to share and transfer

Administration and enforcement

What is the maximum penalty for copyright infringement for an individual?	Fifty thousand ringgit or imprisonment for five 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?	As above.	CA s.41, s.43
Is registration of copyright required before it may be enforced in court?	NO
Is there a distinction between personal versus (large-scale) commercial use?	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
Is any portion of the revenues of copyright collectives set aside for benevolent purposes?	LIMITED One collecting society, the MACP, sponsors the annual MACP Awards and a Music Development Fund.	http://www.macp.com.my/
Are copyright collectives precluded from using their revenues for political lobbying?	NO
Is copyright enforced only through mechanisms provided by law, rather than through private intermediaries?	YES
Is the enforcement of copyright restricted to civil or private law, rather than attracting criminal sanctions?	NO In general criminal sanctions apply to commercial scale infringements, unless the accused acted in good faith and had no reasonable grounds for supposing that copyright would be infringed.	CA s.41
Are damages for copyright infringement based on the loss sustained, rather than by a preestablished or statutory damages award?	YES
Is there provision to penalise the wrongful allegation of copyright infringement?	NO

Conclusions

In one respect, Malaysia has been too swift to adapt its copyright law to changing circumstances, and in another sense not swift enough. In the first respect, it has wasted no time in incorporating the requirements of the WIPO Copyright Treaty (WCT) into its Copyright Act, for example by limiting the circumvention of technical protection measures (TPM) and granting copyright owners a new right of communication to the public, even though it has not yet signed that treaty (though it has signalled its intention to do so). However in the second sense, Malaysia has failed to adapt the law to the reasonable expectations of consumers in the digital age; for example by permitting time, place and format-shifting, or by making incidental copies of Web content while browsing.

Behind the black letter law, the enforcement of copyright law in Malaysia remains inconsistent. Counterfeit movies, music and software are still sold openly in markets and even suburban shopping centres. Although the Enforcement Division of the Ministry of Domestic Trade and Consumer Affairs is empowered to investigate complaints of infringement by copyright owners, fewer such complaints are made than there are outlets for counterfeit goods. These matters have not been overlooked by the United States Trade Representative, which has included Malaysia on the Watch List in its recent Special 301 Reports.

What the 301 Report overlooks is that a large part of the reason for the continuing problem of counterfeiting in Malaysia is that original goods are priced beyond the reach of many consumers. For example, the retail price of an original Blu-Ray disk in Malaysia is about 130 ringgit, which is more than the average salary earner earns in a day and more than the cost of the same product in the USA - whereas a counterfeit alternative can be purchased for 15 ringgit.

This work is licensed under a Attribution Share Alike Creative Commons license

May copyright works be freely offered for commercial rental?	NO	CA s.13(1)(f)
May a person in lawfully possession of a copyright work distribute, communicate or make it available without reference to the copyright owner?	NO The exclusive right to control the communication of a work to the public and the distribution of copies to the public by sale or other transfer of ownership is reserved to the copyright owner.	CA s.13(1)(aa), s.13(1)(e)
May works be dedicated to the public domain without legal formality besides 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