The rapid growth of digital technology and the proliferation of the Internet have challenged the traditional notion of intellectual property rights protection, particularly with respect to copyright.
Originally, the Internet only offered access to the World Wide Web, which was merely a collection of interconnected documents and resources.
However, today, the Internet offers various services, ranging from email, file transfer, online gaming and e-commerce to social networking. Internet users have more control over the creation of content as they can easily create web pages and blogs and web profiles on social networking sites.
While the Internet enables works to be made available to a wide audience at minimal cost, the ease of access to these works also means that works are easily copied, stored and distributed to others without the consent and knowledge of the owners of these works.
The amendment to the Copyright Act 1987 (“Amendment”) seeks to address the challenges that the Internet has posed to copyright law.
The Amendment also aims to fulfil the requirements that will allow Malaysia to accede to the WIPO Copyright Treaty and WIPO Phonograms and Performance Treaty as well as to keep the Copyright Act 1987 abreast with new developments and international standards.
This article discusses two main features under the Amendment, namely (i) the circumvention of technological protection measures and electronic right management information systems; and (ii) the liability of Internet Service Providers.
Circumvention of technological protection measures for copyright
Certain copyright owners put in additional self-help technical measures such as access control measures and copy control measures (such as passwords, encryption, access codes) to restrict access to or prevent copying of their works.
The Amendment makes it an offence for anyone to circumvent, or cause or authorize anyone to circumvent, technological protection measures used by copyright owners to protect their works.
It is also an offence for anyone to manufacture, import, distribute or possess any technology, device or component which is used, designed or produced for the purpose of enabling or facilitating the circumvention of technological protection measures.
Circumvention of electronic right management information systems
Some copyright owners also implement electronic right management information systems to protect their works.
Electronic right management information systems (such as electronic watermarking placed in the copyrighted work) are electronic means used by copyright owners to identify and track the utilization of their works as well as to set terms relating to the use of their works.
The Amendment makes it an offence for anyone to do certain acts which he knows or has reasonable grounds to know that such acts will induce, enable, facilitate or conceal copyright infringement. The prohibited acts are:
- the removal or alteration of any electronic right management information without permission; or
- the distribution, importation for distribution or communication to the public without permission, of works or copies of works knowing that electronic right management information has been removed or altered without permission.
Liability of Internet Service Providers
Prior to the Amendment, there was no specific indemnity provision to indemnify the liability of Internet Service Providers (“ISPs”) in relation to civil suits brought by copyright owners.
Arguably, ISPs may be jointly and severally liable with the copyright infringers as the Copyright Act 1987 is drafted so widely to catch both primary and secondary copyright infringers.
The issue is, whether a person can be liable for copyright infringement simply by providing the gateway to the Internet or hosting web pages in which copyright infringing materials are available on the web pages.
The Amendment now provides safe harbour provisions to protect and indemnify ISPs against any claims of copyright infringement in relation to the use of the services of intermediaries by third parties for infringing activities under copyright law.
“Service provider” means a person who provides services relating to, or provides a connection for the access, transmission or routing of, data.
It includes providers and operators of facilities for online services and network access and is arguably wide enough to cover ISPs which include website operators, web hosting, server and cloud computing providers.
The Amendment exempts an ISP from liability for copyright infringement for certain activities such as transmitting, routing or providing connections of an electronic copy of the work through its primary networks or system caching, as Parliament recognises that these activities are necessary to provide efficient access of data.
It states that an ISP will not be liable for transmission or transient storage provided:
(a) the work is not initiated by the ISP;
(b) the transmission is done through an automatic technical process;
(c) the ISP does not select the recipient;
(d) the ISP does not make any modification to the content of the work; or
(e) there is no notice given by the copyright owner.
Nevertheless, the court has the power to order the ISP to disable access to the account and/or terminate the account.
As for storage and information location services, the ISP will not be liable for infringing materials stored on its network at the direction of the user or for providing hyperlink or directory or an information location service such as a search engine if:
(a) the ISP has no actual knowledge of the infringing materials and/or is not aware of the facts that make the infringing activity apparent;
(b) the ISP does not receive any direct financial benefit and has no right to control the infringing activity; and
(c) the ISP responded timely to the take-down notice from the copyright owner.
Notice and Take-Down Procedure When Copyright is Infringed
A copyright owner whose work has been infringed on a network may give a notice to the ISP to remove or disable access to the infringing electronic materials on the network.
The ISP must then remove or disable access to the infringing materials within 48 hours. It is an offence to give false notice.
The person whose electronic copy of the materials was removed or to which access has been disabled may issue a counter notification to the ISP to request that the copy or access to it on the network is restored.
The ISP must promptly provide the copyright owner with a copy of the counter notification and inform him that it will restore the removed copy or access to it within 10 days unless the copyright owner gives a confirmation that he has filed an injunction against the issuer of the counter notification from engaging in any infringing activity on the network.
The Amendment requires the copyright owner and the issuer of the counter notification to compensate the ISP for any damages, loss or liability arising from the ISP’s compliance with the notification. An ISP who promptly complies with the notice and take-down procedure will be exempted from any liability with respect to the removal and disabling access of infringing materials.