Copyright law is a subset of intellectual property law that protects authors’ rights to their work. The rationale of copyright law is two folds; to spur innovation in the arts and sciences for the greater good of society and to secure a fair and reasonable return for creators of works to ensure their continued creativity. Books, songs, paintings, sculptures, films, computer programmes, databases, advertisements, maps and even technical drawings all fall under the legal protection of copyright.
Copyrights law allows the owner of the protected materials to regulate their dissemination, adaptation, public performance, and re-publication.
The Malaysian Copyright Act 1987 (“the Act”) protects two types of rights which may be categorised as ‘economic rights’ and what is referred to in Section 25 as ‘moral rights’.
Economic rights are concerned solely with the commercial exploitation of copyrighted works. This right gives the rightful owner the right to sue anyone who profits from their work.
These rights are provided under Section 13(1) of the Act. Rights such as reproduction, public performance, broadcasting and distribution are all part of this category.
There is a sense of connectedness between the author and their work; because of this, the author should have the right to protect their work. The author’s moral rights are not precisely defined but are typically referred to as a “bundle of rights, ” whose definition and content may vary from country to country. These include the right to be identified as the author, the right to have one’s work published, the right to retract, withdraw, or disown one’s work and the right to object to any alterations made to their work that would do damage to their reputation.
Under this provision, no one may perform or authorise the doing of any of the following without the author’s permission:
All the mentioned rights apply to all works, including but not limited to those in the literary, artistic, musical, films, sound recording and broadcasting.
Preliminary legal protection of the intellectual property is provided by registration with the Malaysian Intellectual Property Corporation (MyIPO), which is required for most intellectual property, with the exception of Copyright, which receives automatic protection upon publication under Section 10 of the Act.
Moral rights can be divided into two categories: rights of attribution and association and rights of integrity. The term ‘attribution rights’ refer to the author’s entitlement to be publicly identified as the creator of the work and to have their name included in any necessary authorship credits (i.e. credits of a film, initial of the artist on a painting, name of the author on a literary work, etc.)
For instance, when a work is cited, reproduced by the press, broadcast, or disseminated to the public, sufficient recognition of the source and the author of the work must be given pursuant to Section 13(2). Similarly, in an application under Section 31 for a compulsory licence for translation rights, an applicant must include the original title and author’s name on all printed copies of the translated work. Rights of attribution also entitle the author to remain anonymous if they choose to.
Integrity rights under Section 25(2) refer to the author’s ability to prevent their work from being misrepresented or destroyed and to defend its original meaning. The author has the right to prevent their work from being plagiarised, published elsewhere without permission, utilised in an unfavourable context, or destroyed without offering to return it to the author.
If the use of the author’s original work poses direct harm to the author’s good character or reputation, the author may claim for moral rights infringement.
Criminal and civil remedies are available for the author to safeguard their intellectual property. Criminal action against copyright infringers is a more direct option. To initiate criminal action against the infringement, a complaint can be filed with the Ministry of Domestic Trade and Consumer Affairs (KPDNHEP), so they can search and seize the infringed materials.
As outlined in Part VII of the Act, officers have broad authority to investigate and seize infringing materials and conduct searches for individuals suspected of breaking the copyright law. If there are good reasons to believe that a person has copies that have been used in an authorised manner, that person is considered to be in possession of infringed copies. Section 44 grants the authority to conduct a search and seizure. This is confirmed by the ruling in Kerajaan Malaysia & Ors v Then See Nyuk & Ors. It holds that no damages can be recovered against the authorities for a lawful search and seizure under the act, even if no criminal prosecution resulted from the seizure.
When a statutory duty is violated, the author or their agent may bring a lawsuit under Section 25 of the Act. In the event of the author’s death, his representative may seek compensation through this civil option. Damages awarded by the court are compensatory in the sense that they restore the plaintiff to the financial position they held prior to the tortious act.
The scope of damages is broad, encompassing not just monetary losses but also ‘aggravated damages’ for harm done to the plaintiff’s pride, feelings and other intangibles resulting from the infringer’s action.
The judgment of aggravated damages in cases involving the infringement of moral rights is more suitable because these cases are concerned not so much with financial as non-monetary losses, such as wounded feelings or mental discomfort. In addition, proving actual losses might be challenging, especially if the work has already been sold. Remedies under Section 25 are rather more consolatory than compensatory in nature.
Apart from damages, the court can order the infringer to publish any modifications it deems necessary. In cases where authorship has been incorrectly attributed, such an order could be helpful, but in cases where the work has been altered, it might be irrelevant.
Because creative works are so intrinsically linked to the author’s identity and thought process, the law recognises the need to protect authors from more than just their economic rights. Therefore, the protection of moral rights gives the author a measure of control over their work, regardless of who owns it at the time. It helps to protect the author’s reputation and right from being associated (or, if they choose not to) with their work.
