Understanding copyright laws is more important than ever in today’s increasingly digital world. This is particularly true in Malaysia, where diverse creative industries flourish. This article explores the basics of copyright law in Malaysia, discussing the rights granted under the law, the forms of protection available to copyright holders, and the legal mechanisms to enforce these rights.
Copyright and its examples
Copyright law is a subset of intellectual property (IP) law that protects authors’ rights to their work. Books, songs, paintings, sculptures, films, computer programs, databases, advertisements, maps and even technical drawings all fall under the scope of the legal protection of copyright.
Copyright law allows the owner of the protected materials to regulate their dissemination, adaptation, public performance, and re-publication of their works. It allows the creators to control how their works are used and distributed, benefiting them financially and protecting their IP.
Copyright Act 1987
In Malaysia, copyright is governed by the Copyright Act 1987 (“the act”). The act is the primary legislation that governs copyright protection in Malaysia, and it outlines the rights and obligations of creators and copyright holders, including the remedies available in matters of copyright infringement.
To ensure that copyright protection in Malaysia is in line with global standards and provides the same protections in other countries, the act is drafted based on international copyright standards, including the Berne Convention for the Protection of Literary and Artistic Works.
Rights granted to copyright holders in Malaysia
In the context of copyright, economic rights are concerned solely with the commercial exploitation of copyrighted works. To ensure the rightful owners are adequately compensated for their work, the law gives them the right to sue anyone who profits from their work without their consent.
Economic rights are stipulated under Section 13(1) of the act. This category includes the right:
- To reproduce the work;
- Distribute it to the public, publicly display or perform it;
- Create derivative works based on the original.
Example: If a musician holds the copyright to a song, they have the exclusive right to reproduce and distribute copies of that song, whether in physical or digital form.
This means they can:
- Control the production and sale of CDs, digital downloads, or streaming of their music.
- Grant licenses to others, such as music labels or streaming platforms, to distribute in exchange for royalties or other financial compensation.
Similarly, economic rights apply to other creative works, such as books, films, artworks, software and architectural designs. Authors can control the reproduction and distribution of their books; filmmakers can control the screening and distribution of their films, and software developers can control the licensing and distribution of their software.
By exercising these economic rights, creators can monetise their works, generate income from their intellectual property, and control their use.
In Malaysia, moral rights are recognised and protected under the act. The act grants four (4) specific moral rights to the copyright holders:
- The right to be identified as the author or creator of the work;
- The right to object to any distortion, mutilation, or modification of the work that could harm the creator’s reputation:
- The right to object to the false attribution of the work;
- The right to prevent the work from being used in a way that is prejudicial to the creator’s honour or reputation.
Why moral rights should be safeguarded?
- To protect the personal and reputational interests of the creator
- To ensure that authors are recognised as the creators of their work and that their work is not subjected to derogatory treatment or modification without their consent.
- To protect the integrity and dignity of the creator’s work
- To serve as a means for creators to be recognised and credited for their work, uphold their professional standing, and secure potential opportunities.
Moral rights under Section 25 of the Copyright Act 1987
Moral rights under Section 25 can be divided into two categories:
- Rights of attribution and association, and
- Rights of integrity.
The term ‘attribution rights’ refers 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 to associate them with their work published to the masses.
(i.e., a film’s credits, the artist’s initial on a painting, the author’s name on a literary work, etc.)
For instance, when a work is cited, reproduced by the press, broadcasted or disseminated to the public, sufficient recognition of the source and the author of the work must be given per 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. With this right, the author can prevent their work from being plagiarised and published elsewhere without permission.
Copyright protection is an automatic protection.
Preliminary legal protection for other forms of intellectual property, such as patents, trademarks and trade secrets, are provided by the Malaysian Intellectual Property Corporation (MyIPO) upon successful application and registration. However, in Malaysia, copyright protection is automatically granted to creators upon creating their original works.
This means that registration is not required for copyright protection. As soon as a work is created, it is automatically protected by copyright law under Section 10 of the act.
However, while registration is not necessary for copyright protection, it is highly recommended for reasons such as:
- As additional evidence of ownership and can be beneficial in any legal dispute.
- Accessible public records of your copyright ownership can be used as proof in court if someone infringes your rights.
What remedies are available under the law to compensate me for my loss if my rights have been infringed?
If you believe someone is misusing your copyrighted works in Malaysia, several remedies are available under civil and criminal law to safeguard your IP and compensate for such financial loss.
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 so they can search and seize the infringed materials.
Search and Seize under Criminal Law
As Part VII of the Act outlines, 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 own infringed copies.
Section 44 grants the authority to conduct a search and seizure. This is confirmed by the Kerajaan Malaysia & Ors v Then See Nyuk & Ors ruling. 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.
Damages under Civil Law
The author or copyright holder may sue under Section 25 if they find any of the following:
- Unauthorised use or reproduction of their copyrighted work, such as copying, distributing, performing, or displaying the work without their permission
- Possession of infringed copies of work that infringes the copyright owner’s right
In case of the author’s death, their representative may seek compensation through this civil option.
What can be recovered under the law?
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 favourable 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, mainly if the work has already been sold. Remedies under Section 25 are rather more consolatory than compensatory.
Apart from damages, the court can order the infringer to publish any necessary modifications or order an injunction to cease the distribution or sale of the infringed works.
Creative works are linked to the author’s identity and thought process; hence, the law recognises the need to protect authors from more than just their economic rights. Therefore, protecting 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 if they choose not to with their work.
- Registering your copyright can provide additional protection and strengthen your position as the rightful owner.
- In case of infringement causing significant harm or financial loss, you may need to consider taking legal action by engaging a lawyer specialising in IP law to file a lawsuit in the Malaysian court.
- To facilitate your case, gather evidence of the infringement, such as copies of your original work and any relevant communication or documentation that proves your ownership.