MALAYSIA Law and Practice Contributed by: Tai Foong Lam and Amy Lim Yun Jin, Gan Partnership
3.2 Requirements for Copyright Protection Copyright protection in Malaysia is automatic, pro- vided it is original and fixed in a tangible form. As such, copyright registration in Malaysia is voluntary and effected by notification to the Intellectual Property Corporation of Malaysia for the purpose of providing evidence of authorship and the date of creation in the event of disputes arising. 3.3 Authorship and Ownership In Malaysia, the author of a work is generally the owner of the copyrighted work. However, if the work is creat- ed by the author during the course of employment, the owner of the copyrighted work is the employer. This exception may vary depending on the arrangement between the author and the employer. If the author is commissioned for such work as a contractor and/ or freelancer, the ownership of the copyrighted work depends on the arrangement between the parties. Similarly, depending on the arrangement between the author and authorship, joint ownership of the copy- righted work is also allowed. 3.4 Scope of Rights and Moral Rights In Malaysia, copyright owners may reproduce their work in any form, perform their work publicly, author- ise their work to be adapted, modified or translated, distribute their work by way of selling or renting, import or export copies of their work, authorise their work to be used via licensing and/or transfer their work by way of an assignment. Moral rights such as the right to authorship (being rec- ognised as the author of the work), the right to prevent prejudicial treatment or distortion of the work and the right to object to any distortion that would harm the author’s reputation are recognised in Malaysia. These rights, however, cannot be conferred economically but may be waived with the author’s written consent. It is also not uncommon to see the author’s heirs exercise their moral rights in Malaysia to preserve the author’s reputation. 3.5 Term of Protection and Termination Generally, copyright protection in Malaysia lasts for the author’s lifetime from the date of creation of the work and 50 years after the author’s death. If the work is created by an employee in the course of work and
nature of the offence, the perpetrator may face fines of at least MYR15,000 and/or imprisonment of up to three years. Alternatively, the proprietor may lodge a complaint with the Malaysian Ministry of Domestic Trade and Consumer Affairs (KPDNHEP) regarding infringing or counterfeit goods, providing supporting documents. The enforcement officer will then search for and seize the infringing/counterfeiting goods and initiate neces- sary criminal prosecution on a case-by-case basis. Further, Malaysia has existing border measures under Section 31 of the Customs Act 1967 and Part XIII of the Trademarks Act 2019 to prohibit the importation of infringing goods into Malaysia. Apart from the above, the trade mark owner may also file a civil suit against the infringer in the high court. The civil remedies available in an infringement case, subject to the court’s discretion, include a declaration of infringement, a permanent injunction to prevent fur- ther infringement, an order to deliver or destroy infring- ing materials and monetary damages, which can be awarded as a lump sum or based on an account of profits. Additionally, the court may award aggravated, exemplary or punitive damages, among others. As for legal fees and costs, these are generally recoverable at the court’s discretion, depending on the complexity of the case and in accordance with the standard scale of costs prescribed under the Rules of Court 2012. 3. Copyright 3.1 Legal Framework and Copyrightable Works The main source of law governing copyright protec- tion in Malaysia is the Copyright Act 1987. Generally, the types of works protected include literary works, artistic works and derivative works such as books, music and films. Unfortunately, industrial designs and applied arts are not protected under copyright in Malaysia, but are instead regulated under the Indus- trial Designs Act 1996.
186 CHAMBERS.COM
Powered by FlippingBook