We live in an age where information and communications technology (ICT) has brought much improvement to human life.
The digital revolution has revolutionised the way we live, study, work and play.
Today’s computers and smartphones have enabled us to communicate with each other easily and obtain information from the Internet effortlessly. We can also use these electronic devices to take and share photos instantly, stream videos online and listen to music wherever and whenever we want.
Parliament has enacted a series of cyber laws to address the various issues that may arise from the use of ICT. One of them is the Copyright (Amendment) Act 2012 (Amendment Act) which came into force on March 1, 2012.
KEY FEATURES OF THE AMENDMENT ACT
The Amendment Act 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.
(1) Notification of copyright
Under the Amendment Act, the owner or licensee of a copyrighted work may notify the Controller of Copyright (controller) of the copyright in the work by providing the prescribed particulars and paying a fee.
Notification is not mandatory.
Upon notification, the particulars of the work such as the personal particulars of the copyright owner, a statutory declaration that the applicant is the owner, the category, title, name of the owner, date and place of the first publication of the work, will be recorded and maintained on the Register of Copyright. An advantage of notifying the copyright to the controller is that the certificate of notification issued by the controller constitutes prima facie evidence of the owner’s claim to the copyright and is admissible in court. This will assist copyright owners in discharging the burden of establishing their claim of copyright in a work, which is often a daunting task.
(2) Anti-camcording
It is now an offence for any person who operates an audiovisual recording device in a screening room (such as a cinema or theatre) to record any film in whole or in part. Anyone who attempts to do so commits an offence.
(3) Circumvention of technological protection measures
The Amendment Act makes it an offence for anyone to circumvent, or cause or authorise anyone to circumvent, technological protection measures used by copyright owners to protect their works, such as passwords, encryption, access codes, and watermarking. Such technological protection measures are necessary to prevent copying and restrict access to copyright 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.
(4) Liabilities of service providers
The Amendment Act also introduces new liabilities for service providers. “Service providers” are persons who provide services relating to, or 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 Internet service providers and website operators.
The Amendment Act exempts a service provider 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 to data.
A copyright owner whose work has been infringed on a network may request the service provider to remove or disable access to the infringing electronic copy on the network. The service provider must then remove or disable access to the infringing copy within 48 hours.
The person whose electronic copy of the work was removed or to which access has been disabled may issue a counter notification to the service provider to request that the copy or access to it is restored on the network.
The service provider must promptly provide the owner with a copy of the counter notification and inform him that the removed copy or access to it will be restored in 10 days unless confirmation is given by the owner that he has filed an injunction against the issuer of the counter notification stopping him from infringing activity on the network. The Amendment Act requires the copyright owner and the issuer of the counter notification to compensate the service provider for any loss incurred by complying with their notifications.
CONCLUSION
The Amendment Act keeps copyright law relevant in the ICT age. It demonstrates the government’s commitment to ensuring stronger protection for copyright owners and is a practical approach to combating copyright piracy in modern Malaysia.
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About the author:
This article was written by Edwin Lee Yong Cieh, Partner of LPP Law – law firm in Kuala Lumpur, Malaysia (+6016 928 6130, [email protected]). Feel free to contact him if you have any queries.
This article was first published in CHIP Magazine Malaysia.
The view expressed in this article is intended to provide a general guide to the subject matter and does not constitute professional legal advice. You are advised to seek proper legal advice for your specific situation.
Edwin is a corporate and technology lawyer. He is also the founder and deputy managing partner of Lee & Poh Partnership (LPP Law). Edwin has advised a range of companies from technology startups to multinational corporations on a range of matters. In 2020, Edwin was named as a Malaysian Rising Star by Asian Legal Business, a finalist for the Young Lawyer of the Year at the ALB Malaysia Law Awards as well as a lawyer in the annual ALB publication of Asia 40 under 40.
View his full profile here.
