CHANG TSI
Insights
In the global intellectual property protection system, Malaysia has established a comprehensive copyright protection framework based on the Copyright Act 1987, administered by the Intellectual Property Corporation of Malaysia (MyIPO). This framework covers both traditional and new types of creative works, clarifies the boundaries of rights, infringement liabilities, and remedies, providing clear guidance for creators, users, and relevant institutions to facilitate the orderly development of the cultural and creative industry.
The core legal basis for copyright protection in Malaysia is the Copyright Act 1987. All matters related to copyright, such as the recognition of rights, duration of protection, and determination of infringement, must comply with the provisions of this law.
The official authority responsible for copyright administration is the Intellectual Property Corporation of Malaysia (MyIPO). Its Copyright Division is located in Kuala Lumpur, with the specific address: "Level 18, Tower B, Menara UOA Bangsar, No. 5 Jalan Bangsar Utama 1, 59000 Kuala Lumpur". The public can obtain consulting services through its official website or email, ensuring transparent and efficient handling of copyright-related matters.
Malaysia's copyright law clearly defines the scope and duration of protection for different types of works, safeguarding the rights of creators while balancing public interests.
(I) Main Types of Works and Duration of Protection
1. Literary, musical, and artistic works: Protected for the lifetime of the creator plus 50 years after their death, covering traditional creative forms such as novels, poems, songs, paintings, and sculptures.
2. Films: Protected for 50 years from the date of first publication.
3. Sound recordings: Protected for 50 years, starting from January 1 of the year following the year of fixation or publication, applicable to audio carriers such as music albums and audiobooks.
4. Broadcasts: Protected for 50 years from January 1 of the year following the year of the first broadcast, including various programs aired by radio and television stations.
5. Special works: Anonymous or pseudonymous works, works by government and international organizations, and published editions are all protected for 50 years from January 1 of the year following the first publication. Performers' rights are protected for 50 years from the year when the performance is first fixed in a sound recording.
(II) Legal Definition of "Publication"
"Publication" under copyright law must meet the conditions of "authorization and meeting the reasonable needs of the public". The form of publication for different works is clearly defined:
6. Literary, musical, and artistic works: Considered published if copies are made available to the public through sales or other means with the author's authorization.
7. Films: Recognized as published if copies of the film are made available to the public to meet reasonable needs through sales, rental, or public exhibition with the author's authorization.
8. Sound recordings and fixed performances: Classified as published if copies are made available to the public with the authorization of the author or performer and can meet the reasonable needs of the public.
It should be noted that live performances of literary or musical works and public exhibitions of artistic works do not constitute "publication" in the sense of copyright law. If a work is first published overseas but simultaneously published in Malaysia within 30 days, it can still be recognized as "first published in Malaysia".
(I) Exclusive Rights
Copyright owners legally enjoy five core exclusive rights, enabling them to independently decide the way their works are used and disseminated:
1. The right to reproduce the work in any material form, such as printing a novel into a book or scanning a painting for archiving.
2. The right to communicate the work to the public, including online dissemination and public broadcasting.
3. The right to publicly perform the work, such as holding live music performances and theatrical shows.
4. The right to distribute copies of the work to the public, such as selling books through bookstores and music albums through online platforms.
5. The right to commercially rent copies of the work, such as renting film discs and books.
As special right holders, performers also enjoy exclusive rights, including communicating the performance to the public, fixing an unfixed performance, reproducing the fixation of the performance, distributing the fixation of the performance to the public, and commercially renting the fixation of the performance. However, it should be noted that if a performer has authorized others to exercise a specific right, that right will terminate automatically.
(II) Limitations on Rights
To prevent copyright monopolies from affecting public interests, Section 13 of the Copyright Act 1987 sets limitations on exclusive rights, allowing fair use in specific situations, mainly including:
1. Fair dealing: When using works for research, private study, criticism, review, or news reporting, the title of the work and its author must be indicated (except for news reported through sound recordings, films, or broadcasts). To determine "fair dealing", four factors must be considered comprehensively: the purpose of use (whether it is commercial), the nature of the work, the proportion and substantiality of the used content, and the impact on the market value of the work.
2. Special usage scenarios: Creating parodies, pastiches, or caricatures; including artistic works visible to the public in films or broadcasts (such as including public sculptures when shooting street scenes); reproducing or distributing artistic works permanently displayed in public places; using works in teaching scenarios in line with fair practice (with the source and author indicated); reproducing works within educational institutions; and recording broadcasts or literary/musical works for private domestic use (such as recording radio programs).
(I) Copyright Licensing Mechanism
Malaysia implements a registration system for copyright licensing bodies. Social organizations or institutions that intend to operate as "copyright licensing bodies" must apply for registration with the Controller and strictly comply with the requirements of Section 27A of the Copyright Act 1987. Operating licensing services without registration or violating legal provisions after registration constitutes an offence, with a maximum fine of 500,000 ringgit.
Licensing bodies must comply with three core rules in their operations:
1. Proposed licensing schemes can be submitted to the Copyright Tribunal, which determines the reasonableness of the scheme and sets the validity period (fixed term or indefinite).
2. If a dispute arises during the implementation of the licensing scheme (such as a dispute between the licensing body and the licensee over authorization terms), it can be submitted to the Tribunal for adjudication, and the scheme remains in effect during the dispute period.
3. If a licensing body unreasonably refuses to grant authorization in accordance with the scheme, the applicant can apply to the Tribunal for mandatory authorization. After verification, the Tribunal can order the licensing body to grant authorization under reasonable terms.
(II) Equitable Remuneration System
Regarding the commercial use of sound recordings, the law clearly stipulates that performers enjoy the "right to equitable remuneration": if sound recordings are used for commercial publication, broadcasting, or public communication, performers are entitled to remuneration. The amount of remuneration can be agreed upon in a contract, and the agreed terms can be more inclined to protect the rights and interests of performers. In the absence of a contract, performers can apply to the Copyright Tribunal for a ruling on the amount of remuneration, and can also apply to modify the contract terms or the previous ruling within 12 months after the Tribunal's previous ruling (extendable with the Tribunal's permission under special circumstances).
It should be noted that if a contract contains clauses such as "prohibiting performers from questioning the fairness of remuneration" or "restricting the power of the Tribunal", the contract is invalid. The scope of "commercial publication" includes making sound recordings available to the public through wired or wireless means, allowing the public to independently choose the time and place of access (such as online music platforms).
(I) Copyright Registration
Copyright protection in Malaysia does not require registration as a prerequisite. However, creators or copyright owners can submit a "copyright notification" to the copyright authority to clarify the ownership of rights and reduce the risk of subsequent rights protection. To apply for registration, the following materials must be submitted and fees paid:
1. Name, address, and nationality of the copyright owner;
2. Statutory declaration (proving that the applicant is the author, copyright owner, copyright assignee, or licensee);
3. Category of the work (such as literary, musical, artistic, etc.);
4. Title of the work;
5. Name of the author (if the author is deceased, the date of death, if available);
6. For published works, the date and place of first publication;
7. Other supplementary information required by the Malaysian Minister.
(II) Identification of Infringement
The following acts are clearly defined as copyright infringement and shall bear corresponding legal liabilities:
1. Performing acts controlled by exclusive rights without the copyright owner's permission, such as unauthorized reproduction and dissemination of works;
2. Importing infringing copies without permission and using them for commercial purposes, including sales, rental, public exhibition, or large-scale distribution that damages the interests of the copyright owner.
(III) Legal Liabilities and Remedies
Legal liabilities for copyright infringement are divided into civil remedies and criminal penalties to ensure comprehensive accountability for infringing acts:
1. Civil remedies: Copyright owners can file a lawsuit with the court. The court can rule on the following remedies based on the actual situation: issuing an injunction (prohibiting the infringer from continuing the infringing act), ordering the infringer to compensate for losses, recovering profits from infringement, determining statutory damages (up to 25,000 ringgit per work, with a total not exceeding 500,000 ringgit), or other reasonable rulings.
2. Criminal penalties: If an infringing act constitutes a crime (it must be proven that the actor is not "acting in good faith and without reasonable grounds to believe in infringement"), the actor will face fines, imprisonment, or both. The specific penalties depend on the type of infringing act:
3. Producing, selling, distributing, possessing (for non-private use), exhibiting, or importing (for non-private use) infringing copies: For the first offence, a fine of 2,000-20,000 ringgit per infringing copy, or imprisonment for up to 5 years; for repeat offences, a fine of 4,000-40,000 ringgit per infringing copy, or imprisonment for up to 10 years.
4. Producing or possessing tools used to make infringing copies: For the first offence, a fine of 4,000-40,000 ringgit per tool, or imprisonment for up to 10 years; for repeat offences, a fine of 8,000-80,000 ringgit per tool, or imprisonment for up to 20 years.
5. Circumventing technological protection measures (such as cracking copyright protection programs) or manufacturing, importing, or selling circumvention tools: For the first offence, a fine of up to 250,000 ringgit, or imprisonment for up to 5 years; for repeat offences, a fine of up to 500,000 ringgit, or imprisonment for up to 10 years.
6. Unauthorized removal or alteration of electronic rights management information (such as work copyright marks) or dissemination of works with altered information: For the first offence, a fine of up to 250,000 ringgit, or imprisonment for up to 5 years; for repeat offences, a fine of up to 500,000 ringgit, or imprisonment for up to 10 years.
7. Recording films in screening venues (such as cinemas) (anti-camcording): For the first offence, a fine of 10,000-100,000 ringgit, or imprisonment for up to 5 years; attempting to record is punishable by a fine of 5,000-50,000 ringgit, or imprisonment for up to 1 year.
Malaysia's copyright protection system, centered on the Copyright Act 1987, achieves a balance between the rights of creators and public interests through clear definition of rights, reasonable limitations on rights, standardized licensing mechanisms, and strict accountability for infringement. Both traditional literary and artistic works and digital-era sound recordings and broadcast content can obtain clear legal protection. The equitable remuneration system and copyright registration mechanism further improve the path of rights protection, providing solid legal support for the stable development of Malaysia's cultural and creative industry.
