Tuesday, September 15, 2009

copyright in intellectual property

Copyright in Malaysia
Computer Programmes

A computer program is a west of instructions or commands that gives directions to the computer as to the sequence in which its operations should be conducted in order to carry out specific functions. “ Computer programs” were only added to the list of copyright works under the Copyright Act 1987. Prior to 1987, it was generally felt that computer programs were protected under the repealed Copyright ACT 1969. However, it was doubtful that copyright was available then.
Under the 1969 Act, “literary works” were defined to ‘mean’ a number of items, none of which would have covered ‘computer programs’. By using the word ‘mean’ instead of ‘include’, the definition would appear to be exhaustive and not merely illustrative of the works capable of constituting ‘litarary work’.
Computer programs developing day to day. So that, we need copyright to protect our intellectual property. Consequently, from the 1960s onwards, for some form of protection against unauthorized copying. When confronted with the issue, courts in most jurisdictions appeared to accept that copyright protection was available, at least in so far as the source codes were concerned. The issue of proper legal regime for protection was taken by the legistures in some countries and resolved in favour of copyright now.
When Malaysia replaced the Copyright Act 1969 with the 1987 Act, it too extended protection to ‘ computer programs’ as literary works.

Section 3. Copyright 1987 (Act 332)
In this Act, unless the context otherwise requires—

"adaptation" includes any of the following, that is to say—

(a) in relation to a literary work, a version of the work (whether
in its original language or a different language) in which it
is converted into a dramatic work;

(b) in relation to a dramatic work, a version of the work
(whether in its original language or a different language)
in which it is converted into a literary work;

(c) in relation to a literary or dramatic work—
(i) a translation of the work;
(ii) a version of the work in which the story or action is
conveyed wholly or mainly by means of pictures in a
form suitable for reproduction in a book or in a
newspaper, magazine or similar periodical;

(d) in relation to a literary work in the form of a computer
program, a version of the work, whether or not in the
language, code or notation in which the work was originally
expressed not being a reproduction of the work;

(e) in relation to a musical work, an arrangement or transcription
of the work;

(f) in relation to a literary or artistic work, a version of the
work (whether in its original language or a different language)
in which it is converted into a film;

"artistic work" includes—
(a) paintings, drawings, etchings, lithographs, woodcuts,
engravings and prints and any three dimensional work

(b) maps, plans, charts, diagrams, illustrations, sketches and
three dimensional works related to geography, topography,
architecture or science;

(c) works of sculpture;

(d) works of architecture in the form of buildings or models:

(e) photographs not comprised in a film; and

(f) works of artistic craftsmanship including pictorial woven
tissues, tapestry and articles of applied handicraft and
industrial art:


(a) in relation to literary works, means the writer or the maker
of the works;

(b) in relation to musical works, means the composer;

(c) in relation to artistic works other than photographs, means
the artist;

(d) in relation to photographs, means the person by whom the
arrangements for the taking of the photograph were

(e) in relation to films or sound recordings, means the person by
whom the arrangements for the making of the film or
recording were undertaken;

(f) in relation to broadcasts transmitted from within any
country, means the person by whom the arrangements for
the making of the transmissions from within that country
were undertaken;

(g) in relation to any other cases, means the person by whom
the work was made;

"broadcast" means the transmitting, for reception by the general
public, by wireless means or wire, of sounds or images or both; and

"broadcasting" shall be construed accordingly;

"broadcasting service" means any service of radio or television
broadcast, operated under the general direction and control of or
under licence by the Government, in any part of Malaysia;

"building" includes any structure;

"citizen" includes a person who, if he had been alive on the
relevant day, would have qualified for citizenship under the
Federal Constitution;

"communication by cable" means the operation by which signals
are guided by wire, beam or other conductor device, to the public
or any section thereof, for reception, and "communicate by cable"
shall be construed accordingly;

"communication to the public" means the making of a work
available to the public and includes, in addition to any live
performance or delivery, any mode of visual or acoustic
presentation; and "communicate to the public" shall be construed

"computer program" means an expression, in any language,
code or notation, of a set of instructions (whether with or without
related information) intended to cause a device having an information
processing capability to perform a particular function either
directly or after either or both of the following:

(a) conversion to another language, code or notation;

(b) reproduction in a different material form;

"Controller", "Deputy Controller" and "Assistant Controller"
means respectively the Controller of Copyright, the Deputy
Controller of Copyright and an Assistant Controller of Copyright
appointed under section 5 (1):

"copy" means a reproduction of a work in written form, in the
form of a recording or film, or in any other material form;

"copyright" means copyright under this Act;

"educational institution" shall have the same meaning as
assigned to it in the Education Act 1961:

"film" means any fixation of a sequence of visual images on
material of any description, whether translucent or not, so as to be
capable by use of that material with or without any assistance of
any contrivance

(a) of being shown as a moving picture; or

(b) of being recorded on other material, whether translucent or
not by the use of which it can be so shown,
and includes the sounds embodied in any sound-track associated with
a film:

"fixation" means the embodiment of sounds, images or both in
a material form sufficiently permanent or stable to permit them to be
perceived, reproduced or otherwise communicated during a period of
more than transitory duration;

"future copyright" means copyright which will or may come into
existence in respect of any future works or class of works or other
subject matter, or on the coming into operation of any provision of
this Act, or in any future event;

"Government" means the Government of Malaysia or the
Government of any State;

"infringing copy" means any reproduction of any work eligible for
copyright under this Act, the making of which constitutes an
infringement of the copyright in the work;

"licence" means a lawfully granted licence in writing. permitting
the doing of an act controlled by copyright;

"licensing body" means a society, firm or other organization which
has as its main object, or one of its main objects, the negotia tion or
granting of licences in respect of copyright works, and includes an
individual carrying on the same activity;

"literary work" includes

(a) novels, stories, books, pamphlets, manuscripts, poetical works
and other writings;

(b) plays, dramas, stage directions, film scenarios, broadcasting
scripts, choreographic works and pantomimes;

(c) treatises, histories, biographies, essays and articles;

(d) encyclopaedias, dictionaries and other works of reference;

(e) letters, reports and memoranda;

(f) lectures, addresses, sermons and other works of the same nature;

(g) tables or compilations, expressed in words, figures, or symbols
(whether or not in a visible form); and

(h) computer programs or compilations of computer programs;
"manuscript", in relation to a work, means the original document
embodying the work, whether written by hand or not;

"material form", in relation to a work or a derivative work, includes
any form (whether visible or not) of storage from which the work or
derivative work, or a substantial part of the work or derivative work can be

"Minister" means, unless otherwise stated, the Minister charged with
the responsibility for copyright matters;

"musical work" means any musical work, and includes works
composed for musical accompaniment;

"photograph" means any product of photography or of any process akin
to photography, other than a part of a film, and includes a product created
through any electronic process;

"premises" means any place, stationary or otherwise established
or set up by any person, and includes any such place in the open air,
whether such place is with or without enclosure, and also includes
vehicles, aircraft, ships and any other vessel;
"qualified person"

(a) in relation to an individual, means a person who is a
citizen of, or a permanent resident in, Malaysia; and

(b) in relation to a body corporate, means a body corporate
established in Malaysia and constituted or vested with legal
personality under the laws of Malaysia;

"rebroadcast" means a simultaneous or subsequent broadcast by
one broadcasting service of the broadcast of another broadcasting
service, whether situated in Malaysia or abroad, and includes
diffusion of such broadcast over wires; and "rebroadcasting" shall
be construed accordingly;

"relevant day" means Merdeka Day in respect of West
Malaysia and Malaysia Day in respect of Sabah, Sarawak and the
Federal Territory of Labuan;

"reproduction" means the making of one or more copies of
work in any form or version and "reproducing" shall be construed

"sound recording" means any fixation of a sequence of sounds
capable of being perceived aurally and of being reproduced by any
means, but does not include a sound-track associated with a film;
"Tribunal" means the Copyright Tribunal established under
section 28; and

"work of joint authorship" means a work produced by the
collaboration of two or more authors in which the contribution of each
author is not separable from the contribution of the other author or

This definition and other computer-related provisions in the Act 1987 were closely modeled on the Australian Copyright Amendment Act 1984.
In the case Creative Purpose sdn Bhd & Anor v. Integrated Trans Corp Sdn Bhd& Ors, the plaintiffs who
Kamalanathan Ratnam JC , the judge made the following observation,

……it is possible to sieve from the numerous judicial observations, that copyright protection for software program is strongly entrenched, and that the courts have shown a willingness to extend the protection to both the object as well as the source codes. In fact, a set of instructions which is conferred protection as well. Its is my finding that the definition under Section 3 of the Act should be read broadly so as to include all manifestations of that set of instructions which can be read by a computer in whatever converted form.

Check out this SlideShare Presentation:

Japan Aims for Copyright- relaxed ‘special cyber zone’
Posted on 2008-08-25

Japan's Ministry of Internal Affairs and Communications is aiming to establish "special cyber zones" (cyber tokku), in which users can use and experiment with copyrighted materials on the Internet without legal worries, in 2009. Such materials will include net-distributed video and music that have been authorized by the copyright holders. However, "only specific participants will be allowed to enter" the zones. Similar to the existing special economic zones (keizai tokku) with relaxed business regulations, the cyber equivalents are intended to promote the global competitiveness of the telecommunications industry and support the creation of new business opportunities. The ministry is requesting a budget of 2 billion yen (US$18 million) for this initiative in 2009.
Like other countries, Japan has grappled with the balance of copyright enforcement versus individual rights and business opportunities on the Internet. Japan currently allows unauthorized downloads of copyrighted material for private use, but the Agency for Cultural Affairs is pushing for an amendment to allow prosecution of these downloaders. At the same time, Prime Minister Yasuo Fukuda's Intellectual Property Strategy Headquarters proposed a fair-use clause, similar to the American one, that will consider non-commericial use and the lack of harm on market value as mitigating factors in any prosecution. Niwango's Nico Nico Douga video-sharing website was forced last month to remove videos that reportedly infringed on the copyrights of three Japanese associations of video content companies.

Source: Yomiuri Shimbun via Sankaku Complex.

Cybercafé fined for copyright breach
Fan Foo
Nov 26,2008

A SYDNEY internet cafe operator has pleaded guilty to 40 charges of copyright infringement involving titles such as Russell Crowe's American Gangster.
Interville Technology was fined $82,000 and ordered to pay court costs at the Downing Centre Local Court yesterday. The company's computers and servers seized during a raid by the Australian Federal Police will be forfeited. On December 18, 2007, the AFP raided Interville's cybercafe located at Sydney's World Square shopping centre following an investigation by the Australian Federation Against Copyright Theft (AFACT) and the Music Industry Piracy Investigations (MIPI). According to AFACT and MIPI, the cafe had 60 computers and three servers that contained hundreds of thousands of infringing movie, TV and music titles. The cafe was charging its patrons hourly fees to illegally access movies and music, that were then saved on storage devices with up to 60GB of space. Both organisations say the capacity would be able to hold 40 movies and hundreds of music files. During the raid, Interville was found to have infringed on the copyright of then yet-to-be-released movies, including American Gangster and National Treasure Book of Secrets, plus songs from over 150 popular artists like 50 Cent, Alicia Keys and Justin Timberlake. "It is satisfying to see sentences handed down which properly reflect the damage operations like this does to the rights of owners and the 50,000 Australians working in the film and TV industries," AFACT operations director Neil Gane said. Mr Gane said the outcome would send a clear message to internet cafe owners engaged in commercial scale copyright breach. "You will be caught and you risk severe penalties." Last week AFACT moved sue internet service provider iiNet for allegedly authorising copyright infringement activities on its network.
It has also warned individual users not to illegally share or download movies and songs.

1 comment:

  1. kerajaan telah mengambil langkah yang bijak dengan mewujudkan mahkamah harta intelek di Malaysia memandangkan isu harta intelek ini sangat penting dlam konteks dunia tnpa sempadan sekarang.dengan adanya mahkamah tersebut,diharapkn segala isu harta intelek dapat diselesaikan dgn segera dan efektif..