Transcript COPYRIGHT - Intellectual Property Homepage

Copyright
Definition:
 Copyright protects the form of expression of ideas but
not ideas themselves [Intellectual Property Law by
Colin Goluan, 1992 at p.2]
 Branch of IP which protects the proprietary rights of
authors in relation to their created works(Khaw Lake
Tee, Copyright Law in Malaysia, p.1)
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 Branch of IP which protects the proprietary rights of
authors in relation to their created works(Khaw Lake
Tee, Copyright Law in Malaysia, p.1)
 Entitles the author to control the reproduction of his
works
 Protects the economic and moral rights of the author
Categories of Copyright
Works
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Literary
Artistic
Musical
Derivative Works – the translation, adaptations, arrangements
and other transformations of the works eligible for copyright (s8(1)
Copyright Act 1987)
 Subject matter other than original works
Literary
 S3 Copyright Act 1987 – a non-exhaustive list
 Covers work expressed in print or writing or
reduced to a material form regardless of quality
or merit of literary
 Eg. Exam papers, advertisements, companies
prospectus, dramatic works, tables &
compilations, computer programs
Artistic
 S 10 Copyright Act 1987 – artistic craftmanship and
artistic works
 S 7(2) CA 1987 – covers works which are artistic in
nature though not of any artistic quality
 Eg. Drawings, maps, plans, charts and the like,
photographs, sculpture
 Artistic craftmanship covers artistry as well as
craftmanship and it must originates from the same
person
Duration for Copyright
 Life of the author plus 50 years after the
author’s death
 For works which remain unpublished at the
time of death of the author, the duration shall
expire 50 years after the publication- s 17(2) CA
1987
Subsistence & Qualification
of Copyright
 Work is protected if the requirements set out in s10 CA
1987 are fulfilled
 Originality does not mean originality of ideas but of
expression of thoughts – s 7(3)(a) CA 1987
 It relates to input of effort into the creation of work
 Where there is sufficient effort and skill expended by
the author to produce the work
Subsistence & Qualification
of Copyright
 Lau Foo San v Government of Malaysia [1974] 1 MLJ
28, Federal Court held that engineering drawings and
designs for the construction of classroom by a civil
engineer were original works.
 University of London Press Ltd v University Tutorial
Press [1916] 2 Ch 601- examination papers prepared by
examiners were held to be original literary works
Subsistence & Qualification
of Copyright
 The amount of effort is a question of fact – Macmillan
& Co Ltd v K & J Cooper (1924). It was held in this
case that study notes, in which the text consists of a
reprint of selected passages, were entitled to copyright.
Subsistence & Qualification
of Copyright
 Where the preparatory stage and the compilation
stage cannot be separated the skill and effort
expended at the former can be taken into account
to determine originality – Football League Ltd v
Littlewoods Pools Ltd [1959] Ch 637 at 652. In
this case a great deal of labour, skill and
ingenuity was put in to prepare the football clubs
list which was subsequently turned into a
chronological fixture list.
Protection of Copyright
 No formalities required for registration as long as
there’s subsistence and qualification of copyright as
mentioned above
 A copyright work should carry a notice where such right
is claimed
 Eg. of such notice - the word “copyright” or the letter
“©” accompanied by the name of person claiming
copyright and the year of 1st publication.
Protection of Copyright
 Protection is also afforded under s42 CA 1987 – an
affidavit or a statutory declaration by the owner or his
agent annexing a copy of the copyright is prima facie
evidence and is admissible in evidence in any
proceedings under the Act.
Protection of Copyright
 The Berne Convention – Malaysia acceded to it in
1/10/1990
 Applies to authors who are nationals of one of the
Berne Union countries
 Authors who are not nationals of one of the Berne
Union countries but their works are first published in
one of the Berne Union countries, or simultaneously in
a country outside the Union and in the country of the
Union (within 30 days of its first publication in a nonBerne Union country).
Infringement
 The law of copyright practically restrict the copying in
whole or a substantial part of the owner’s work either in
its original or derivative form
 Lord Reid in Ladbroke (Football) Ltd v William Hill
(Football) Ltd [1964] 1 WLR 273 stated that
“substantiality” depended more on the quality than the
quantity of what has been taken
Infringement
 Hawkes & Son v Paramount Film Service [1934] 1 Ch
593 – the defendant had reproduced a substantial part of
the musical work when they played it for 20 seconds
out of the normal 4 minutes play. The consideration was
whether the amount taken could be recognised by any
person as the musical work in question. If so, then a
substantial part had been taken per Lord Hanworth MR.
Infringement in derivative
form
S8 CA 1987 –it covers the following: Translation (to another language)
 Adaptation (of a book into a play)
 Arrangements (of musical work)
 Transformation
 Collection of works
Ways in which copyright may
be infringed
 Reproduction into a material form includes the
recording of a literary work from a book to tape or disc
 Reproduction of a work in two-dimensional form into a
three-dimensional form amounts to infringement. See
Peko Wallsend Operations & 3 Ors. V Linatex Process
Rubber Bhd [1993] 2 CLJ 94
Ways in which copyright may
be infringed
 King Features Syndicate Inc v Kleeman Ltd [1941] AC
417 – the copyright in drawing of “Pop-eye the Sailor”
had been infringed by reproductions of that drawing in
the form of dolls and brooches.
 Performance, playing or showing of the work to the
public
Ways in which copyright may
be infringed
 Broadcasting
 Distribution to the public - once the owner has released
his copyright work by sale he is taken to have consented
to any future disposition. Rental and lending of books is
not considered an infringement of copyright
 S 13(1) CA 1987
Infringement
 Direct infringement – where any one acts under s13 CA
1987 is done without the consent of the owner
(infringement of the exclusive right of the owner)
 Indirect infringement (secondary infringement) –
include the sale, distribution/ importation of works
incorporating copyright works (s36(2) CA 1987)
Direct Infringement
1) Objective similarity – comparing the similarities and
differences (either visually or aurally) between the
original work and the infringing copy. Two computer
programs which produces the same function/ output/
look and feel does not necessarily satisfy the objective
similarity test.
Direct Infringement
2) Causal connection – sufficient objective similarities
may raise the inference of a causal connection but the
defendant may rebut this presumption
3) Infringement of the substantial part of the work
Remedies to Infringement
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Damages
Injunction
Anton Piller
Delivery
Restriction on importation
Damages
 Malaysia – s36(2) whether it includes exemplary
damages remains open
 Singapore – s119(4) includes exemplary damages
 Australia – s115(4) includes exemplary damages
Offences Under CA 1987
 S 41 CA – on conviction of any of the offences under
s41(1)(a)-(f) CA, shall be liable to a fine of not less than
RM2,000.00 and not more than RM20,000.00 and/or
imprisonment of not exceeding 5 years.
 On conviction of the offence under s41(1)(g) CA, shall
be liable to a fine of not less than RM4,00.00 and not
more than RM40,000.00 and/or imprisonment not
exceeding 10 years.
Offences Under CA 1987
 On conviction of the offences under s41(1)(h), (i)&(j)
CA, shall be liable to a fine not exceeding
RM250,000.00 and/or imprisonment of not exceeding 3
years.
Fair Dealing
 Malaysia – s13(2)(a) the right to control does not include
fair dealing for purpose of non-profit research, private
study, criticism etc…
 Singapore s35(2) and Australia s40(2) lay down various
factors to be taken into account when considering the
question of fair dealing
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Fair Dealing
The factors are:Purpose and character of the dealing
The nature of the work
The amount and substantiality of the parts taken
The effect of the dealing
The availability of the work in the market
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