By Jacob Ting
Copyright is a type of intellectual property that safeguards the tangible expression of ideas.
This legal framework covers a vast range of products generated by the human mind and confers upon the rightful owners a set of moral and economic rights, enabling them to manage, enjoy and use their creations.
The fundamental objective of copyright law is to encourage and foster intellectual creation and innovation.
Copyright protection in Malaysia is regulated by the Copyright Act 1987, which safeguards original works in their tangible form. Unlike some countries, there is no legal requirement for copyright registration or deposit in Malaysia. Copyright automatically applies to a work once it is created or published within the country’s borders.
In Malaysia, a work must meet certain qualifications to be eligible for copyright protection. The creator must be a “qualified person,” which refers to a citizen or permanent resident of Malaysia or a member country of the Berne Convention.
If the work is first made available in a Berne Convention country or created in such a country, it automatically qualifies for copyright protection in Malaysia. However, if it is initially published somewhere else, it must be published within 30 days in Malaysia or any Berne Convention country to qualify for protection.
Malaysia became a member of the Berne Convention on October 1, 1990. The Copyright Act specifies the kinds of works that are safeguarded by copyright: –
a) literary works e.g., novels, stories, plays, dramas, letters, tables or compilations and computer software;
b) musical works;
c) artistic works e.g., paintings, drawings, maps, illustrations relating to architecture or science, sculpture, photographs and handicrafts;
d) films;
e) sound recordings; and
f) broadcasts.
To be eligible for copyright protection, a work must fulfil the criterion of inventiveness, implying that it must have been created by the author independently with a considerable amount of skill or effort.
Literary, musical, and artistic works enjoy copyright protection for the author’s lifetime and 50 years following their demise.
Copyright protection for photographs, sound recordings, films, and published editions lasts for 50 years from the beginning of the calendar year when the work was initially disseminated.
In the case of a broadcast, copyright protection extends for 50 years from the start of the calendar year in which it was first broadcasted.
In 1997, the Copyright Act in Malaysia was revised to emphasise that multimedia works are included in the protected works under the legislation.
The amendments were introduced to guarantee sufficient intellectual property rights protection for businesses investing in the information technology and multimedia industry.
Given the absence of a copyright registration system in Malaysia, a Statutory Declaration that specifies the author’s name, the date of creation, and includes a copy of the work is deemed as prima facie evidence of copyright ownership by the courts.
The Copyright Act gives the owner the sole right to control the exploitation of literary, musical works, artistic works, films and sound recordings in terms of –
a) reproduction in any material form i.e., two or three-dimensional;
b) the communication to the public;
c) performance, showing or playing to the public;
d) distribution of copies of the work to the public by sale, rental, lease or lending, and
e) the commercial rental to the public, of the whole work or a substantial part thereof, either in its original or derivative form.
It is an infringement of the rights of the copyright owner to do any of the acts mentioned above without the consent or licence of the owner/creator.
While protecting intellectual property rights is crucial, it is also vital to strike a balance between granting monopolies and safeguarding the public interest, including access to knowledge.
Former US President Harry S. Truman famously stated that “there is nothing new in this world, except the history you do not know”.
In the milieu of copyright, the creative work that an individual claim to have “created” might, in fact, have been the result of their experiences, exposure, understanding, acquaintance, revelation, observation, and perception of the world around them, which they learned through years of formal and informal education.
For instance, consider a songwriter who doesn’t compose a song on his/her first day of exposure to music (except, perhaps, for Wolfgang Amadeus Mozart). However, even Mozart may have been extensively exposed to music during his early childhood through his father, Leopold Mozart, who was a renowned composer, conductor, and violinist.
Numerous accomplished scientists, academics, researchers, and composers have built upon the accomplishments of their mentors or teachers, whose works they have studied, analysed, contemplated, and listened to.
In light of this, one might ask: why should an individual’s work be safeguarded when a portion (whether small or substantial) of it was derived from their learning and observation of the earlier contributions of their predecessors?
The dawn of new technological era has greatly shifted the state of affairs of our world today on how information is being accessed, including those protected by copyright. Of course, rights holders may ride on the wave of technological advancement in exploiting these technological innovations and at the same time, precluding any unauthorised abuse on their copyrighted works.
With the current rapid and exponential technological advancements, it is nearly impossible to predict the potential future uses and exploitations of copyrighted works. For instance, the evolution of mobile phones, which Martin Cooper introduced in 1973, has been beyond what anyone could have imagined at the time, with smartphones like Android and Apple becoming an essential part of millions of users’ lives today. Therefore, the open-ended copyright exceptions should be flexible enough to shape any future copyright reforms.
Jacob Ting (jting@swinburne.edu.my) is a law lecturer affiliated with the Faculty of Business, Design & Arts at Swinburne University of Technology. He specialises in contract law, ethics, and governance related matters, and has a keen research interest in intellectual property law.
